State ex rel. Spung v. Evnen

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
State ex rel. Gregory Spung et al., relators,
v. Robert Evnen, Nebraska Secretary of
State et al., respondents.
___ N.W.3d ___
Filed October 16, 2024. 	No. S-24-563.
1. Mandamus: Words and Phrases. Mandamus is an extraordinary rem-
edy, not a writ of right, issued to compel the performance of a purely
ministerial act or duty, imposed by law upon an inferior tribunal, cor-
poration, board, or person where (1) the relator has a clear right to the
relief sought, (2) there is a corresponding clear duty existing on the part
of the respondent to perform the act, and (3) there is no other plain and
adequate remedy in the course of the law.
2. Mandamus: Proof. In a mandamus action, the party seeking mandamus
has the burden of proof and must show clearly and conclusively that
such party is entitled to the particular thing the relator asks and that the
respondent is legally obligated to act.
Original action. Peremptory writ issued.
Rose 	Godinez, 	Jane 	Seu, 	Grant 	Friedman, 	and 	Dylan
Severino, of ACLU of Nebraska Foundation, Jeffrey P. Justman,
Craig Coleman, Martin S. Chester, Anderson C. Tuggle, and
Joe Quinn, of Faegre, Drinker, Biddle & Reath, L.L.P., pro hac
vice, and Jonathan Topaz and Sophia Lin Lakin, of American
Civil Liberties Union Foundation, pro hac vice, for relators.
Michael T. Hilgers, Attorney General, Eric J. Hamilton,
Lincoln J. Korell, and Zachary B. Pohlman, for respondent
Robert Evnen.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:30 AM CDT

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
Christopher L. Eickholt, of Eickholt Law, L.L.C., for amicus
curiae Nebraska Criminal Defense Attorneys Association.
John D. Cartier, of Cartier Law, L.L.C., for amicus curiae
American Probation and Parole Association.
Nicholas Grandgenett and Robert E. McEwen, for amicus
curiae Nebraska Appleseed Center for Law in the Public
Interest, and Graham Provost, pro hac vice, for amicus curiae
Public Rights Project.
Brenna M. Grasz, of Keating, O’Gara, Nedved & Peter,
P.C., L.L.O., and Douglas P. Seaton, James V. F. Dickey, and
Alexandra K. Howell, of Upper Midwest Law Center, for amici
curiae Governor Jim Pillen et al.
Hallie A. Hamilton, of Abrahams, Kaslow & Cassman,
L.L.P., for amicus curiae Kristin Skorupa.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
The Nebraska Secretary of State (Secretary) announced in
the summer of 2024 that he would not implement recent statu-
tory amendments providing that individuals who have been
convicted of felonies are eligible to vote as soon as they com-
plete their sentences. The Secretary took the position that the
statutory amendments were unconstitutional. Individuals who
were convicted of felonies and who had completed their sen-
tences 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 num-
ber of judges have not found that the statutory amendments
are unconstitutional, we issue a peremptory writ of manda-
mus directing the Secretary and the election commissioners to
implement the statutory amendments immediately.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
BACKGROUND
In order to properly understand the parties’ dispute, famil-
iarity with provisions of the Nebraska Constitution regarding
voting rights, Nebraska’s Board of Pardons, and the separation
of powers is required. Accordingly, we begin there.
Constitutional Provisions.
The Nebraska Constitution divides the powers of state gov-
ernment “into three distinct departments, the legislative, execu-
tive, and judicial.” Neb. Const. art. II, § 1. It also states that
“no person or collection of persons being one of these depart-
ments 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 con-
stitution provides that “[a]ll elections shall be free; and there
shall be no hindrance or impediment to the right of a quali-
fied 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 restric-
tions and limitations as he may think proper, subject to such

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Nebraska Supreme Court Advance Sheets
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STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
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 pow-
ers 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 rel-
evant 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 commu-
tations in all cases of conviction for offenses against the laws
of the state, except treason and cases of impeachment.”
Statutory Enactments.
Also relevant to this case are current and former statutes
concerning the voting rights of individuals convicted of felo-
nies and how those rights can be restored. Before ratification
of the 1875 constitution, an 1873 statute prohibited any person
“sentenced to be punished for any felony (when sentence shall
not have been reversed or annulled)” from voting, serving on
a jury, or holding office, “unless said convict shall receive
from the governor of this state a general pardon . . . in which
case said convict shall be restored to his civil rights and privi-
leges.” Gen. Stat. ch. 58, § 258, p. 783 (1873). Later, after the
creation of the Board of Pardons, see Neb. Const. art. IV, § 13
(1920), the Legislature amended this statute to provide that
any “general pardon” restoring such rights must come from
the Board of Pardons. 1951 Neb. Laws, ch. 86, § 1, p. 249.
Eventually codified as Neb. Rev. Stat. § 29-112 (Cum. Supp.
1951), this statute remains part of Nebraska’s criminal proce-
dure statutes today. See § 29-112 (Reissue 2016).
In 1959, the Legislature amended § 29-112 to eliminate
the language requiring a “general pardon” and to substitute in
its place the requirement that a “warrant of discharge” from
the Board of Pardons was the mechanism to restore a felon’s
civil rights and privileges. 1959 Neb. Laws, ch. 117, §§ 1

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STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
and 2, pp. 448-49 (codified as § 29-112 (Cum. Supp. 1959)).
As amended in 1959, § 29-112 provided that felons whose
sentences had not been reversed or annulled were “deemed
incompetent to be an elector . . . unless such convict shall
receive from the Board of Pardons of this state a warrant of
discharge, in which case such convict shall be restored to his
civil rights and privileges.” § 29-112 (Reissue 1964).
In 2001, the Nebraska Attorney General issued an advisory
opinion concluding that “the Board of Pardons is not required
to issue a warrant of discharge” and that “restoration of any
civil rights which are forfeited by an offender upon convic-
tion of a felony is a matter within the discretion of the Board
of Pardons.” Att’y Gen. Op. No. 01101 (Mar. 23, 2001).
The Attorney General reasoned that although the Legislature
“purport[ed] to mandate the issuance of such warrants of
discharge by the Board” when it amended § 29-112 in 1959,
the clemency power belonged exclusively to the Board of
Pardons and thus “the Legislature may not mandate that the
Board of Pardons exercise that power.” Att’y Gen. Op. No.
01101, supra.
In 2002, the Legislature amended the warrant of discharge
provisions in § 29-112. See Neb. Laws 2002, L.B. 1054, § 3.
As amended by L.B. 1054, § 29-112 provided that a warrant
of discharge issued by the Board of Pardons had the effect
of restoring “such civil rights and privileges as enumer-
ated or limited by the Board of Pardons.” § 29-112 (Cum.
Supp. 2002).
In 2005, the Legislature again amended § 29-112 when it
enacted 2005 Neb. Laws, L.B. 53, over a gubernatorial veto.
See 2005 Neb. Laws, L.B. 53, § 1. As amended by L.B. 53,
§ 29-112 no longer required a warrant of discharge from
the Board of Pardons to restore voting rights and, instead,
provided: “Any person sentenced to be punished for any
felony, when the sentence is not reversed or annulled, is not
qualified to vote until two years after he or she has completed
the sentence, including any parole term. The disqualification

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317 Nebraska Reports
STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
is automatically removed at such time.” § 29-112 (Cum.
Supp. 2006).
In 2017, the Legislature passed a bill that would have
removed L.B. 53’s 2-year waiting period, but that legislation
was vetoed. 2017 Neb. Laws, L.B. 75, § 1. See, also, Legislative
Journal, 105th Leg., 1st Sess. 1271-73 (Apr. 27, 2017).
Then, in 2024, the Legislature passed L.B. 20, which again
amended § 29-112. See 2024 Neb. Laws, L.B. 20, § 1. As
amended by L.B. 20, § 29-112 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.”
Several other election statutes were also amended by L.B.
20, including those governing the voter registration process
and related forms and notices. See L.B. 20, §§ 4 and 5
(amending Neb. Rev. Stat. §§ 32-312 (Cum. Supp. 2022) and
32-313 (Reissue 2016)). Governor Jim Pillen declined to sign
L.B. 20 but allowed it to become law without his signature.
See Legislative Journal, 108th Leg., 2d Sess. 1804-05 (Apr.
17, 2024).
With this statutory history established, we turn to the events
that immediately preceded this mandamus action.
Attorney General’s Opinion and
Secretary’s Announcement.
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. See
Att’y Gen. Op. No. 24-004 (July 17, 2024).
The same day that the Attorney General released his opin-
ion, the Secretary announced that he was “directing county
election offices to stop registering individuals convicted of

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STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
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 Secretary also directed county elec-
tion officials to use voter registration forms that used language
required by statutes in existence prior to the passage of L.B.
53 in 2005 and that lacked language expressly required by
L.B. 20.
Relators Commence This Action.
In response to the Secretary’s announcement, three indi-
viduals and Civic Nebraska, a nonprofit corporation, asked to
commence an original action for a writ of mandamus in this
court with the Secretary and two county election commission-
ers as respondents. The relators asked for a writ of mandamus
compelling the respondents to use voter registration applica-
tions required by L.B. 20. See § 32-312. They also asked for
a writ of mandamus requiring the Secretary to “effectuate the
automatic removal of disqualification of eligibility” for the
individual relators. Finally, the relators asked for a writ of
mandamus requiring the election commissioners to register the
individual relators as qualified voters.
We granted leave to file the original action and issued an
alternative writ of mandamus that ordered the Secretary to
show cause as to why a peremptory writ of mandamus should
not issue. The Secretary filed a response to the alternative
writ in which he asserted that because L.B. 20 and L.B. 53
are unconstitutional, the relief sought by the relators would
require him to perform an illegal act.
After receiving the Secretary’s response, we directed the
parties to stipulate to facts that would allow us to resolve
this matter. The parties did so. Among the facts to which
the parties stipulated were details concerning the relators.
One relator, Gregory Spung, was previously convicted of a
felony under Nebraska law and has completed his sentence

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317 Nebraska Reports
STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
for that conviction. Another relator, Jeremy Jonak, was previ-
ously convicted of a felony under Nebraska law, as well as a
felony under federal law. He too has completed his sentences
for both convictions. Neither Spung nor Jonak has received a
pardon from the Board of Pardons. A third individual relator
voluntarily dismissed his claims after the stipulated facts were
filed. With respect to Civic Nebraska, the parties stipulated
only as to its status as a Nebraska nonprofit corporation and
its office location.
After the parties filed their joint stipulated facts, we ordered
expedited briefing and oral argument. We also granted leave
for several individuals and entities to submit briefs as amici
curiae.
MANDAMUS PRINCIPLES
[1,2] As we have noted, this is an action for a writ of manda-
mus. Mandamus is an extraordinary remedy, not a writ of right,
issued to compel the performance of a purely ministerial act or
duty, imposed by law upon an inferior tribunal, corporation,
board, or person where (1) the relator has a clear right to the
relief sought, (2) there is a corresponding clear duty existing
on the part of the respondent to perform the act, and (3) there
is no other plain and adequate remedy in the course of the law.
Cain v. Lymber, 306 Neb. 820, 947 N.W.2d 541 (2020). In a
mandamus action, the party seeking mandamus has the burden
of proof and must show clearly and conclusively that such
party is entitled to the particular thing the relator asks and that
the respondent is legally obligated to act. State ex rel. Parks
v. City of Omaha, 277 Neb. 919, 766 N.W.2d 134 (2009).
Whether to grant a writ of mandamus is within the court’s dis-
cretion. See State ex rel. Veskrna v. Steel, 296 Neb. 581, 894
N.W.2d 788 (2017).
PARTIES’ ARGUMENTS
The relators ask us to issue a writ directing the Secretary
and the election commissioners to implement the reenfran-
chisement provisions of L.B. 20. They claim L.B. 20 grants

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STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
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 commis-
sioners 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.
While the relators’ argument for mandamus depends on
the reenfranchisement provisions of L.B. 20, the respondents’
argument 	against 	mandamus 	depends 	upon 	the 	Nebraska
Constitution. (Only the Secretary has submitted a brief argu-
ing that the reenfranchisement provisions of L.B. 20 are
unconstitutional, but we understand the election commission-
ers to take the same position and thus refer to the respondents
collectively.) The respondents argue that because the reenfran-
chisement 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.
The relators offer two responses to the respondents’ claim
of unconstitutionality. They argue first that the respondents
should not be allowed, in this mandamus action, to claim that
statutes are unconstitutional. Alternatively, they argue that a
writ of mandamus should issue because the reenfranchisement
provisions of L.B. 20 are constitutional.
STANDARD OF REVIEW
Unlike most of our cases, this action began in our court,
so in one sense, there is no decision for us to review. We
recognize, however, that in another sense, the Secretary is ask-
ing us to assess his determination that the reenfranchisement
provisions of L.B. 20 are unconstitutional. When we are asked
to review a lower court’s determination of a statute’s consti-
tutionality, we resolve the matter independently of the lower
court’s determination because it presents a question of law.
See Big John’s Billiards v. State, 288 Neb. 938, 852 N.W.2d
727 (2014). So too here, to the extent that we must determine

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STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
whether the reenfranchisement provisions of L.B. 20 are con-
stitutional, we do so independently of any determination by the
Secretary or the Attorney General.
JUSTICIABILITY
Before addressing the merits of the petition for a writ of
mandamus, we briefly address an issue regarding justiciability.
The respondents argue that Civic Nebraska’s claims for manda-
mus should be dismissed. They point out that the parties’ joint
stipulated facts establish standing for the individual relators,
Spung and Jonak, but that the parties did not stipulate to facts
that would establish standing for Civic Nebraska.
We need not, however, determine whether Civic Nebraska
has standing to reach the issues presented in this mandamus
action. Under the parties’ stipulated facts, Spung and Jonak
clearly have standing to seek mandamus. We will thus reach
the arguments for mandamus presented by the individual rela-
tors. See Planned Parenthood of the Heartland v. Hilgers,
ante p. 217, 9 N.W.3d 604 (2024) (declining to review district
court’s determination that one plaintiff in declaratory judgment
action lacked standing because another plaintiff had standing).
See, also, Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181,
92 L. Ed. 2d 583 (1986) (declining to consider standing of all
plaintiffs because one party had standing).
MANDAMUS ANALYSIS
As we have discussed, the respondents’ defense in this
action rests on their position that the reenfranchisement provi-
sions of L.B. 20 are unconstitutional. 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.

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STATE EX REL. SPUNG v. EVNEN
Cite as 317 Neb. 800
Accordingly, the respondents have not established that the
reenfranchisement provisions of L.B. 20 are unconstitutional.
The Secretary’s sole defense in this mandamus proceed-
ing was that the reenfranchisement provisions of L.B. 20
are unconstitutional. Because the Secretary was unable to
establish his defense that the statutes were unconstitutional, a
majority of this court agrees that the relators have established
the prerequisites for mandamus relief under provisions of L.B.
20 and that the writ should issue. As to their request that the
respondents use voter registration application forms required
by L.B. 20, they have shown a clear right to the relief sought
and a clear duty on the part of the respondents to comply.
Given that the registration deadlines for voting in the 2024
general election are fast approaching, they have also shown
they have no other plain and adequate remedy available in the
ordinary course of the law. The respondents are ordered to use
voter registration application forms required by L.B. 20.
For essentially the same reasons, the relators have shown
they are entitled to mandamus relief ordering the election com-
missioners to register the individual relators to vote upon the
receipt of a complete and correct registration application. The
election commissioners are ordered to do so.
The relators also request that we order the Secretary to
“effectuate the automatic removal of disqualification of eligi-
bility.” They contend that under § 32-313, the Secretary has
a duty to effectuate the removal of their disqualification from
voting. The Secretary, however, argues that § 32-313 does
not impose a duty upon him. The Secretary points out that
the statute provides that the disqualification is “automatically
removed.”
To the extent the relators are contending that § 32-313
requires the Secretary to take some affirmative act to remove
the disqualification of individuals convicted of a felony as
soon as they complete their sentence, we disagree and will
not order him to do so. To the extent the relators are asking
that we order the Secretary to rescind any direction to election

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commissioners that would preclude the registration of the
relators based on conditions outside of L.B. 20, we find they
have established a basis for mandamus relief. The Secretary is
ordered to remove any disqualification on registration he has
imposed that is not contained within L.B. 20 and to comply in
all respects with the provisions of L.B. 20.
CONCLUSION
For the reasons we have stated, we issue the peremptory writ
directing the respondents to immediately comply with L.B. 20
as described in this opinion.
Peremptory writ issued.
Heavican, C.J. concurring.
I concur with the per curiam opinion’s analysis of man-
damus, but I write separately to say we should not reach
the merits in this case. In State v. Douglas County, 18 Neb.
506, 26 N.W. 315 (1886) (Lytle), the relator filed an original
action in this court seeking a writ of mandamus that would
compel the county commissioners of Douglas County to call
for the election of 12 justices of the peace for the city of
Omaha. The relator contended that a statute that had reduced
the number of justices of the peace for the city to three was
unconstitutional. This court acknowledged the issue was “very
important,” but declined to reach the constitutional question.
Id. at 507, 26 N.W. at 315. It explained that such a question
“should not be decided without a full hearing of all parties
interested, and a careful examination of the entire subject.” Id.
“Less than this,” the court continued, “would not justify the
court, in a case of this importance, in rendering a decision.”
Id. But, the court explained, the circumstances under which
the case arrived did not allow for the necessary consideration
of the issues.
As the court described the situation:
[O]n the eve of an election, with many other important
cases pressing on our attention, this case was submit-
ted, practically without argument, and we are asked to

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determine whether or not the act reducing the number of
justices in Omaha to three is constitutional. We cannot
dispose of the case in this summary manner.
Id. Under the circumstances, the court concluded that “[t]he
presumption is that the legislature has done its duty and that
an act passed by it is not in conflict with the constitution; and
it is the duty of all ministerial officers to obey it until the act
is declared invalid.” Lytle, 18 Neb. at 508, 26 N.W. at 316.
There are without question some differences between the
situation presented in Lytle and the situation presented in this
case. The original action in Lytle was filed just days before
the scheduled election. In this case, the Nebraska Secretary
of State (Secretary) announced he would not implement the
reenfranchisement provisions of 2024 Neb. Laws, L.B. 20,
on July 19, 2024, and the original action was commenced on
July 29, more than 3 months before the election. In Lytle, the
case was submitted “practically without argument.” 18 Neb.
at 507, 26 N.W. at 315. In this case, we received detailed
briefing from the relators, the Secretary, and amici curiae, and
oral argument was held. In Lytle, the relators argued in favor
of unconstitutionality. Here, it is the respondents.
All that said, having now considered the arguments of the
parties, I see similarities between this case and Lytle. Although
in this case the relators and the Secretary submitted briefs, they
were forced to do so on a very compressed timeline. The rela-
tors’ opening brief was filed less than a week after the parties
stipulated to facts. The Secretary’s brief was filed 4 days later,
with the relators’ reply filed 3 days after that. The relators thus
had only 3 days to file a brief responding to the Secretary’s
arguments regarding the unconstitutionality of the reenfran-
chisement provisions of L.B. 20. Oral argument was heard 2
days later, on August 28, 2024.
Even under this expedited timeframe, there was relatively
little time between the submission of the case to this court
and the onset of deadlines related to the 2024 general elec-
tion. Early voting in Nebraska commenced on October 7. The

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deadline by which individuals can register to vote online or
by mail is October 18. The deadline by which individuals can
register in person is October 25. And, finally, the election is
November 5.
Further complicating matters is the nature of this case. As
we have discussed, this case turns on the meaning of several
provisions of our state constitution. This court has said that
the “main inquiry” in construing the state constitution is the
“intent and understanding of its framers and the people who
adopted it.” State ex rel. State Railway Commission v. Ramsey,
151 Neb. 333, 340, 37 N.W.2d 502, 507 (1949). That task is
often more difficult the older the provisions at issue, and many
of the provisions at issue here were enacted as early as 1875.
Further complicating matters, the minutes from the 1875 con-
stitutional convention appear to have been lost. See Addison
E. Sheldon, Official Report of the Debates and Proceedings
in the Nebraska Constitutional Convention at 10 (1906). See,
also, State ex rel. Johnson v Chase, 147 Neb. 758, 25 N.W.2d
1 (1946) (noting that proceedings of 1875 constitutional con-
vention were destroyed by fire). With little direct evidence as
to the original understanding of the Nebraska Constitution, it is
necessary to consider extrajurisdictional authority.
Also relevant to the constitutional analysis are various
statutes passed over the last 150 years regarding the restora-
tion of voting rights of those convicted of felonies. We have
recently noted that longstanding practices of government can
inform whether a statute is consistent with the constitution.
See State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024).
As otherwise noted, however, that over time, the Legislature
has enacted a number of different methods of restoring civil
rights, and both the relators and the Secretary contend that
this statutory history supports their respective positions.
Finally, the Secretary is arguing in this case that a statute
is unconstitutional. In an opinion we issued just a few months
ago, Planned Parenthood of the Heartland v. Hilgers, ante

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p. 217, 9 N.W.3d 604 (2024), we quoted extensively from
Thomas M. Cooley’s treatise on constitutional law regarding
a court’s duties when asked to pass upon the constitutionality
of a statute. Relevant to the current discussion, we quoted the
following excerpt from Cooley’s treatise:
“[W]hen courts are called upon to pronounce the inva-
lidity of an act of legislation, passed with all the forms
and ceremonies requisite to give it the force of law, they
will approach the question with great caution, examine it
in every possible aspect, and ponder upon it as long as
deliberation and patient attention can throw any new light
upon the subject, and never declare a statute void, unless
the nullity and invalidity of the act are placed, in their
judgment, beyond reasonable doubt.”
Id. at 227, 9 N.W.3d at 611 (quoting Thomas M. Cooley, A
Treatise on the Constitutional Limitations Which Rest Upon
the Legislative Power of the States of the American Union
(1868)). As the excerpt illustrates, caution, patience, and delib-
eration are to characterize courts’ consideration of the constitu-
tionality of statutes.
From the time this action was commenced, through oral
argument, and up until the release of a decision, this court has
devoted significant time and attention to the difficult issues
raised by this case. Having done so, however, I have the same
concerns that animated our decision in Lytle. We recognize
the importance of the issue this case presents, but under the
circumstances, I am not confident that we have given, or were
able to give, this important issue the attention and consider-
ation it deserves in advance of the deadlines for voter registra-
tion. Similar concerns in Lytle prompted us to decline to reach
the constitutional question there and to instead rely upon the
presumption that statutes are constitutional. I believe it appro-
priate to follow that same course here. As my colleagues’
writings indicate, this matter does not present “[a] clear case[]
of unconstitutionality.” See Van Horn v. State, 46 Neb. 62, 83,
64 N.W. 365, 372 (1895).

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Because I decline to reach the Secretary’s claim that the
reenfranchisement provisions of L.B. 20 are unconstitutional,
on this record, the relators have established the prerequisites
for mandamus relief. They have shown a clear right to the
relief sought and a clear duty on the part of the respondents to
comply with and implement the provisions of L.B. 20. Given
that the registration deadlines for voting in the 2024 general
election are fast approaching, the relators have also shown
they have no other plain and adequate remedy available in the
ordinary course of law. I would find that mandamus relief is
appropriate in this case.
Cassel, J., concurring.
To paraphrase Mark Twain: Justice Miller-Lerman’s fears of
an outbreak of statutory defiance among Nebraska’s ministerial
officers seem greatly exaggerated. The supermajority require-
ment and the presumption of constitutionality impose a high
burden upon a challenger, which should discourage any execu-
tive officer, in all but the clearest circumstances, from unilater-
ally refusing to fulfill a statutory mandate.
The outcome of this case flows from the history surround-
ing the 1875 Nebraska Constitution. The parties, on both sides,
paid little attention to that history. The 1875 statute cited in the
separate opinions of several of my colleagues persuades me
that at the time of adoption of the 1875 and 1920 constitutional
provisions, 1 the Legislature retained a role in restoration of
civil rights.
Because the parties agree that the two persons having
unpardoned felony convictions before us in this case have
completed their sentences, I cannot say that the respondent
Secretary of State has met the high burden here. Thus, I concur
in the judgment.
1 See, Neb. Const. art. VII, § 2 (1875); Neb. Const. art. VI, § 2 (1920).

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But I caution that any attempt by the Legislature to restore
rights at some earlier time is likely to collide directly with the
pardon power conferred upon the Board of Pardons. 2
2 See Neb. Const. art. IV, § 13.
Stacy, J., concurring.
I concur with the per curiam opinion and agree this court
must issue a peremptory writ of mandamus directing the
respondents to comply in all respects with the provisions of
2024 Neb. Laws, L.B. 20. The respondents’ only defense in
this mandamus action was their assertion that L.B. 20 is uncon-
stitutional. For reasons explained in separate concurrences,
some members of this court conclude it is not appropriate to
reach the constitutional challenge in this mandamus action.
For reasons I will explain in this concurrence, I agree with my
dissenting colleagues that we should reach the constitutional
challenge to L.B. 20 in this mandamus action, but like several
of my concurring colleagues, I conclude the respondents have
failed to clearly establish that the reenfranchisement provisions
of L.B. 20 are unconstitutional.
CONSIDERATION OF
CONSTITUTIONAL CHALLENGE
The lead dissent concludes that under this court’s 1895
decision in Van Horn v. State, 1 the respondents should be
permitted to raise a claim of unconstitutionality as a defense
to mandamus. I generally agree that because Van Horn has
been distinguished but not overruled, the respondents should
be permitted to rely on the narrow holding of that case to
challenge the constitutionality of the reenfranchisement provi-
sions in L.B. 20 in this mandamus action. That said, I think
this court should revisit the Van Horn rule, especially now
that the Legislature has repealed Neb. Rev. Stat. § 84-215
(Reissue 2014) and the Nebraska Attorney General no longer
1 Van Horn v. State, 46 Neb. 62, 64 N.W. 365 (1895).

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has a statutory duty to file an action seeking judicial deter-
mination of a statute’s constitutionality when a government
official refuses to implement the statute in reliance on an
Attorney General’s opinion. 2
In Van Horn, the government officials who refused to
implement the act also asked the county attorney to take
appropriate steps to have the constitutionality of the act
determined in the courts; the county attorney then filed the
mandamus action we considered in Van Horn. As the law in
Nebraska currently stands, Van Horn authorizes government
officials to refuse to implement an act of the Legislature
based on a good faith belief that the act is unconstitutional,
but it is unclear whether Van Horn imposed a corresponding
obligation to see to it that an action is commenced in a court
of competent jurisdiction to obtain a judicial determination
of constitutionality. Because only the judicial branch has the
authority to declare an act unconstitutional, 3 and because
there is no longer a statute directing the Attorney General to
present constitutional disputes like this one to the courts for
resolution, I think the Van Horn rule has become untenable.
I am concerned it will delay, rather than facilitate, prompt
judicial resolution of constitutional challenges to statutes,
and I think we should either prospectively disapprove of the
Van Horn rule, or expressly recognize a corresponding obli-
gation to promptly commence an action to obtain a judicial
determination of constitutionality.
I also agree with my dissenting colleagues that our 2002
decision in Ways v. Shively 4 neither addressed nor resolved
the specific separation of powers question before us now. It is
true that in Ways, the Attorney General argued in an amicus
brief that only Nebraska’s Board of Pardons could restore
2 But see Neb. Rev. Stat. § 84-731 (Reissue 2014).
3 E.g., Planned Parenthood of the Heartland v. Hilgers, ante p. 217, 9
N.W.3d 604 (2024).
4 Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002).

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civil rights and that therefore, Neb. Rev. Stat. § 83-1,118(5)
(Reissue 1999) violated the separation of powers because it
restored a convicted felon’s civil rights through a certificate
of discharge. We declined to reach the separation of powers
argument in Ways because it had not been presented to or
ruled on by the trial court. 5 A similar separation of powers
argument is squarely before us now in this original mandamus
action, and it presents an issue of first impression.
Statutes governing felon reenfranchisement have existed in
Nebraska in one form or another for more than 150 years. But
this case marks the first time we have considered a separation
of powers challenge to the constitutionality of any reenfran-
chisement statute. Here, we are asked to consider constitutional
challenges to the reenfranchisement provisions in L.B. 20. The
central issue is the meaning of article VI, § 2, which provides
in relevant part: “No person shall be qualified to vote who . . .
has been convicted of treason or felony under the laws of the
state or of the United States, unless restored to civil rights.”
ARGUMENTS OF PARTIES
The respondents contend the reenfranchisement provisions
of L.B. 20 are unconstitutional for two reasons. Their primary
argument is that only the Board of Pardons can restore felons’
voting rights under article VI, § 2. Alternatively, they argue
that even if the Legislature also has the power to enact statutes
restoring voting rights, the reenfranchisement provisions in
L.B. 20 did not accomplish that goal because article VI, § 2,
refers to restoring “civil rights” plural, and L.B. 20 restored
only the right to vote. (Emphasis supplied.)
The respondents, in their primary argument, assert that the
reenfranchisement provisions of L.B. 20 violate the separa-
tion of powers clause, 6 because those statutory provisions
effectively “exercise a power assigned by the Constitution to
5 Id.
6 Neb. Const. art. II, § 1.

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the Board of Pardons.” 7 According to the respondents, “the
Constitution makes executive clemency the exclusive vehicle
to re-enfranchise felons.” 8 This is so, they argue, because a
pardon is defined as an act that “‘officially nullif[ies] punish-
ment or other legal consequences of a crime.’” 9 They contend
that since a pardon can restore civil rights, and since only the
Board of Pardons has the authority to grant pardons, 10 that the
separation of powers clause 11 is violated when the Legislature
enacts statutes that restore civil rights without a pardon.
The relators see it differently. They generally agree with
the respondents that a felon’s civil rights can be restored by
a full or partial pardon, but they disagree that a pardon is the
only constitutionally permissible way to restore such rights.
The relators contend that the Legislature has always had the
authority to enact statutes establishing the policy and legal
procedure for restoring felons’ civil rights, including the right
to vote under article VI, § 2. They argue that statutes restor-
ing the right to vote do not amount to an improper exercise of
the executive pardon power, and they argue that such statutes
can effectively restore the right to vote without also restoring
other civil rights.
Because the lead dissent finds the respondents’ first con-
stitutional argument persuasive, it does not address their sec-
ond argument. For completeness, I address both arguments,
but ultimately find that neither is sufficient to overcome
7 Brief for respondent Secretary of State at 25.
8 Id. at 25-26.
9 Kocontes v. McQuaid, 279 Neb. 335, 352, 778 N.W.2d 410, 424 (2010)
(quoting Black’s Law Dictionary 1221 (9th ed. 2009)), abrogated on other
grounds, Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
10 See Neb. Const. art. IV, § 13 (“[t]he 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”).
11 See id. (same).

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the presumption that a statute enacted by the Legislature is
constitutional. 12
PRESUMPTION OF CONSTITUTIONALITY
To prove their defense that the reenfranchisement provisions
of L.B. 20 are unconstitutional, the respondents face a steep
burden of proof. All statutes are presumed to be constitutional,
and courts will resolve all reasonable doubts in favor of a
statute’s constitutionality. 13 It is not the province of a court to
annul a legislative act unless it clearly contravenes the con-
stitution and no other resort remains. 14 With this quantum of
proof in mind, I turn to the respondents’ claims that L.B. 20
is unconstitutional.
SEPARATION OF POWERS CLAIM
To 	overcome 	the 	presumption 	of 	constitutionality 	with
respect to their separation of powers claim, the respondents
must clearly show that the reenfranchisement provision in arti-
cle VI, § 2, “makes executive clemency the exclusive vehicle
to re-enfranchise felons” 15 and that the reenfranchisement pro-
visions in L.B. 20 therefore have the effect of “exercis[ing] a
power assigned by the Constitution to the Board of Pardons.” 16
When the presumption of constitutionality is given the high
level of deference it is due, I see no principled way to conclude
the respondents have met their burden.
Although the lead dissenting opinion begins and ends its
analysis by examining the legal effect of a pardon, I think the
proper starting point is the constitutional text of article VI,
§ 2, so I begin there. But first, I recall the settled principles of
constitutional construction that guide my analysis.
12 See State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).
13 Id. Accord State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024).
14 Id.
15 Brief for respondent Secretary of State at 25-26.
16 Id. at 25.

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PRINCIPLES OF CONSTITUTIONAL
INTERPRETATION
A constitution represents the supreme written will of the
people regarding the framework for their government. 17 The
meaning of the Constitution is fixed when it is adopted, and it
is not different at any subsequent time when a court has occa-
sion to pass upon it. 18 Courts are not at liberty to construe
into the constitution new principles that did not exist at the
time of its adoption. 19 It is the duty of courts to ascertain and
to carry into effect the intent and purpose of the framers of
the constitution. 20
The words in a constitutional provision must be interpreted
and understood in their most natural and obvious meaning
unless the subject indicates or the text suggests that they are
used in a technical sense. 21 In ascertaining the intent of a con-
stitutional provision from its language, courts may not supply
any supposed omission, or add words to or take words from
the provision as framed. 22 But it is permissible to consider the
historical facts in determining the meaning of the language of
the Nebraska Constitution. 23 It is also appropriate and helpful
to consider, along with the historical background, the evil and
mischief attempted to be remedied, the objects sought to be
17 State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007);
Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006).
18 First Trust Co. v. Smith, 134 Neb. 84, 277 N.W. 762 (1938) (citing 1
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which
Rest Upon the Legislative Power of the States of the American Union (8th
ed. 1927)).
19 First Trust Co. v. Smith, supra note 18.
20 State ex rel. Johnson v. Gale, supra note 17.
21 Lemon v. Gale, supra note 17.
22 Id. Accord Mekota v. State Board of Equalization and Assessment, 146
Neb. 370, 19 N.W.2d 633 (1945) (courts may not supply what they deem
unwise omissions, nor add words that substantially add to or take from
constitution as framed).
23 Lemon v. Gale, supra note 17.

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accomplished, and the scope of the remedy its terms imply, 24
so that the provision is given a construction that appears best
calculated to effectuate the design of the constitution. 25
It is a fundamental principle that each and every clause
within a constitution has been inserted for a useful purpose, 26
and a constitutional provision should not be construed in a
way that defeats its purpose. 27 Our state constitution must be
construed in the light of the history of the commonwealth,
the surrounding circumstances, the subject matter under con-
sideration, and the object sought to be attained, as well as the
system of laws that were in force in the territory at the time of
its adoption. 28
Here, we are called upon to determine what the framers
meant by the constitutional phrase “unless restored to civil
rights.” The relators contend the framers intended for the
Legislature to carry this provision into effect through statute,
and it has done so. The respondents disagree and contend
the framers intended for executive pardon to be the exclusive
method for restoring civil rights. In the sections that follow, I
consider both contentions.
MEANING OF ARTICLE VI, § 2
As stated, the lead dissent begins its constitutional analysis
by exploring the origins and scope of the pardon power, and
ultimately, it concludes that because a pardon has the effect
of restoring civil rights, a pardon is the only constitutionally
24 Id.
25 See State ex rel. School Dist. of Scottsbluff v. Ellis, 168 Neb. 166, 95
N.W.2d 538 (1959).
26 Lemon v. Gale, supra note 17.
27 See Meyers v. Blair Tel. Co., 194 Neb. 55, 230 N.W.2d 190 (1975) (stating
constitutional provision creating Public Service Commission should not
be construed narrowly as to defeat its purpose but should be construed
liberally to effectuate purpose for which commission was created, which
was primarily to serve public interest).
28 State ex rel. Johnson v. Chase, 147 Neb. 758, 25 N.W.2d 1 (1946).

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permissible way to restore civil rights within the meaning of
article VI, § 2. While I do not disagree that pardons, both cur-
rently and historically, can restore civil rights after a felony
conviction, I do not think that focusing on what the pardon
power is or what it does tells us anything meaningful about
whether the framers intended a pardon to be the only mecha-
nism for restoring the right to vote under article VI, § 2. To
ascertain the meaning and purpose of the phrase “unless
restored to civil rights” in article VI, § 2, I examine the plain
text of the constitutional provision using the interpretive prin-
ciples just recited.
Article VI, § 2, is one of several provisions in the Nebraska
Constitution that addresses suffrage, and the provision has
been part of the constitution since its ratification in 1875.
The Nebraska Constitution establishes the elective franchise
as a fundamental right of all qualified voters and states that
“there shall be no hindrance or impediment to the right of a
qualified voter to exercise the elective franchise.” 29 Qualified
voters, in turn, are expressly defined in 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 . . . .” 30 And article
VI, § 2, 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.” The text of this constitutional
provision has remained unchanged since 1875. 31
As relevant here, the plain text of article VI, § 2, does two
things: (1) It disenfranchises those who have been convicted
of felonies, and (2) it enshrines in the constitution a right to
29 Neb. Const. art. I, § 22.
30 Neb. Const. art. VI, § 1.
31 See Neb. Const. art. VII, § 2 (1875) (transferred by constitutional
convention in 1919-1920 to art. VI, § 2).

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reenfranchisement upon being “restored to civil rights.” But
unlike some state constitutions, the Nebraska Constitution does
not expressly grant the power to restore civil rights to any of
the three branches, nor does it specify the method or criteria by
which civil rights in general, or voting rights specifically, are
to be restored. 32 This is significant for two reasons.
First, because article VI, § 2, establishes the constitutional
policy that a felon’s right to vote can be restored, but does
so without prescribing the means or method to carry that
policy into effect, the reenfranchisement provision is not
self-executing. 33 And when a constitutional provision is not
self-executing, it is generally understood that the Legislature
32 Compare, e.g., N.J. Const. art. II, § 1, ¶ 7 (providing that felony conviction
deprives persons of right to vote but “[a]ny person so deprived, when
pardoned or otherwise restored by law to the right of suffrage, shall again
enjoy that right”); Ky. Const. § 145 (providing that felony conviction
operates to exclude suffrage rights but those excluded “may be restored
to their civil rights by executive pardon”); Utah Const. art. IV, § 6
(providing that any person convicted of felony may not be permitted to
vote until such right “is restored as provided by statute”); N.C. Const.
art. VI, § 2 (providing that no person adjudged guilty of a felony “shall
be permitted to vote unless that person shall be first restored to the rights
of citizenship in the manner prescribed by law”); Or. Const. art. II, § 3
(providing that “privilege of an elector, upon conviction of any crime
which is punishable by imprisonment in the penitentiary, shall be forfeited,
unless otherwise provided by law”); Fla. Const. art. VI, § 4 (providing that
“any disqualification from voting arising from a felony conviction shall
terminate and voting rights shall be restored upon completion of all terms
of sentence including parole or probation”).
33 See, e.g., State ex rel. Lamm v. Nebraska Bd. of Pardons, 260 Neb.
1000, 620 N.W.2d 763 (2001); In re Applications A-16027 et al., 242
Neb. 315, 495 N.W.2d 23 (1993), modified on denial of rehearing 243
Neb. 419, 499 N.W.2d 548; Indian Hills Comm. Ch. v. County Bd. of
Equal., 226 Neb. 510, 412 N.W.2d 459 (1987); State, ex rel. Walker, v.
Board of Commissioners, 141 Neb. 172, 3 N.W.2d 196 (1942). See, also,
Davis v. Burke, 179 U.S. 399, 403, 21 S. Ct. 210, 45 L. Ed. 249 (1900)
(recognizing rule that constitutional provision “‘is not self-executing when
it merely indicates principles, without laying down rules by means of
which those principles may be given the force of law’”).

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may enact legislation to carry it into effect. 34 Indeed, article
III, § 30, of the Nebraska Constitution expressly directs: “The
Legislature shall pass all laws necessary to carry into effect
the provisions of this constitution.”
Second, article I, § 26, of the Nebraska Constitution recog-
nizes that “all powers not herein delegated[] remain with the
people.” Because the framers did not expressly give the power
to restore civil rights under article VI, § 2, to any department
or branch of government, that power remains with the people.
And because the Nebraska Constitution is not a grant of
power, but a limitation of power, the widely accepted doctrine
is that legislative capacity that is not constitutionally inhibited
or prohibited is retained in the people and may be exercised in
the Legislature by representatives of the people. 35 Moreover,
this court has long recognized that it is the Legislature’s func-
tion through the enactment of statutes to declare what is the
law and public policy of this state. 36
In this mandamus action, I do not understand any party
to contend the reenfranchisement provisions of article VI,
§ 2, are self-executing and therefore require no governmental
action to be carried into effect. And other courts constru-
ing similar constitutional reenfranchisement provisions have
rejected such a construction. In Schroeder v. Simon, 37 the
Minnesota Supreme Court considered a constitutional provi-
sion similar to Nebraska’s that provided “‘a person who has
been convicted of treason or felony’” is not entitled to vote
“unless restored to civil rights.” Minnesota also has a stat-
ute that automatically restores all civil rights of convicted
34 See id.
35 State ex rel. Creighton Univ. v. Smith, 217 Neb. 682, 353 N.W.2d 267
(1984).
36 Nebraska Journalism Trust v. Dept. of Envt. & Energy, 316 Neb. 174, 3
N.W.3d 361 (2024).
37 Schroeder v. Simon, 985 N.W.2d 529, 536 (Minn. 2023) (quoting Minn.
Const. art. VII, § 1).

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persons once they have been “discharged.” 38 In Schroeder,
several convicted persons who were living in the community
on probation or supervised release, but who had not yet been
discharged from their sentence, filed a declaratory judgment
action seeking a judicial determination that Minnesota’s con-
stitutional provision should be construed to automatically
restore voting rights once an offender has been released or
excused from incarceration. Minnesota’s Secretary of State
argued the constitutional provision “unless restored to civil
rights” must be construed to require “some affirmative act of
the government,” 39 which the Secretary argued could include
either legislation establishing a mechanism for restoring the
right to vote or nullification of the underlying conviction
through a pardon. After considering the plain text of the
constitutional provision and reviewing the history of the vari-
ous statutes providing procedures for restoring civil rights,
the Minnesota Supreme Court concluded the phrase “unless
restored to civil rights” did not create a mandate to restore
civil rights by any particular method. Instead, it required
“some affirmative act of, or mechanism established by, the
government” to be carried into effect, and it reasoned that
such an act could include either “an absolute pardon that nul-
lifies the felony conviction” or “a legislative act that gener-
ally restores the right to vote upon the occurrence of certain
events.” 40 Schroeder did not involve a separation of powers
challenge like we have here, but the case illustrates that the
constitutional phrase “unless restored to civil rights” is not
38 Minn. Stat. § 609.165 (2022).
39 Schroeder v. Simon, supra note 37, 985 N.W.2d at 538.
40 Id. at 545. Accord, League of Women Voters of Wis. v. Walker, 357 Wis. 2d
360, 374, 851 N.W.2d 302, 309 (2014) (recognizing “‘[t]he persons who
may exercise the right of suffrage . . . are fixed by the constitution’” but
“‘[t]hese provisions are not and were never intended to be self-executing
or exclusive of regulation in other respects. . . . [T]he power to prescribe
the manner of conducting elections is clearly within the province of the
legislature’”).

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self-executing and is broad enough to encompass restoration
through either legislation or executive pardon.
The 	dissent 	concedes, 	as 	it 	must, 	that 	the 	Nebraska
Constitution “does not include an express provision authoriz-
ing the Board of Pardons to restore civil rights” under article
VI, § 2, nor does the constitution expressly give the Pardons
Board the authority to “restore civil rights.” At the very least,
this creates reasonable doubt about whether the respond-
ents can establish their claim that the framers intended the
phrase “unless restored to civil rights” to refer exclusively
to executive clemency. Respectfully, I see no textual support
for concluding that the framers intended the right of reenfran-
chisement under article VI, § 2, to depend exclusively on the
executive pardon power.
Instead, because the constitutional text does not expressly
grant the power to restore voting rights to any branch or
department and is silent as to how such rights are to be
restored, the constitutional text alone does not support the
respondents’ contention that only a pardon can restore voting
rights under article VI, § 2. In the next section, I consider
whether there is anything in the laws or history of our state
that would clearly support the respondents’ contention.
HISTORY OF VOTER REENFRANCHISEMENT
UNDER ARTICLE VI, § 2
Courts can consider extrinsic historical facts in determining
the meaning of the language of the Nebraska Constitution, 41
but in my opinion, a review of the available history surround-
ing voter reenfranchisement in Nebraska does not help the
respondents clearly establish their claim that the phrase “unless
restored to civil rights” was intended by the framers to refer
only to reenfranchisement by executive pardon.
Although courts are permitted to take judicial notice of
the proceedings of the constitutional convention at which the
41 Lemon v. Gale, supra note 17.

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sections of the constitution at issue were framed, 42 we have not
been directed to any proceedings where the framers discussed
or debated the reenfranchisement provision. Presumably, that
is because the minutes from the 1875 constitutional conven-
tion appear to have been lost. 43 We thus have no constitutional
convention records suggesting whether the framers intended
that voting rights under article IV, § 2, would be restored by
legislative enactment, executive pardon, or both.
Courts may also consider the law in force at the time the
constitutional provision was adopted in 1875. 44 But I am not
persuaded that either Nebraska case law or statutes from that
era support the respondents’ position that the framers intended
reenfranchisement under article VI, § 2, to depend exclusively
on an executive pardon.
We have been directed to no Nebraska cases from that era
addressing voter reenfranchisement under article VI, § 2. But
a 1905 case discussing the related issue of juror disqualifica-
tion for felony convictions states it was the “custom” at that
time, when a prisoner was released from the penitentiary, “to
insert in the order for his discharge a provision declaring the
convict to be restored to all his civil rights in all respects the
same as though a pardon had been granted.” 45 The judicial
recognition of such a “custom” in 1905 seriously undermines
the respondents’ argument that the framers intended that a
general pardon was the only way to restore civil rights under
article VI, § 2.
As for the statutes in force in 1875, the respondents note
that an 1873 statute prohibited any person “sentenced to be
punished for any felony (when sentence shall not have been
42 State ex rel. Johnson v. Marsh, 149 Neb. 1, 29 N.W.2d 799 (1947).
43 See Addison E. Sheldon, Official Report of the Debates and Proceedings
in the Nebraska Constitutional Convention at 10 (1906). See, also, State
ex rel. Johnson v Chase, supra note 28 (noting proceedings of 1875
constitutional convention were destroyed by fire).
44 See State ex rel. Johnson v. Chase, supra note 28.
45 Turley v. State, 74 Neb. 471, 476, 104 N.W. 934, 936 (1905).

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reversed or annulled)” from voting, serving on a jury, or hold-
ing public office “unless said convict shall receive from the
governor of this state a general pardon . . . in which case said
convict shall be restored to his civil rights and privileges.” 46
The respondents argue this statute “strongly suggests clemency
is the only authority that can re-enfranchise felons.” 47 I respect-
fully disagree.
To me, it is significant that the framers did not use readily
available language from the 1873 statute when adopting the
disenfranchisement and reenfranchisement provisions of article
VI, § 2. The 1873 statute disenfranchised any person sentenced
for a felony when the sentence was not reversed or annulled,
whereas the framers chose to disenfranchise any person con-
victed of treason or a felony. Moreover, the 1873 statute pro-
vided that a general pardon would restore the person’s civil
rights and privileges, whereas the framers were silent about
how or when civil rights are to be restored. If the framers had
intended the right to reenfranchisement under article VI, § 2,
to depend exclusively on executive pardon, surely they would
not have left such an important point to implication. And since
the framers did not qualify reenfranchisement in this way,
courts should not supply any supposed omission, or add words
to the provision as framed. 48
The respondents also contend that legislative enactments
in the years after the constitution was ratified support their
claim that executive pardon is the only way to restore vot-
ing rights under article VI, § 2. They argue, for instance, that
for “132 years, Nebraska re-enfranchised felons exclusively
through executive clemency.” 49 And they state it “was not
until 2005 . . . that a statute first attempted to re-enfranchise
46 Gen. Stat. ch. 58, § 258, p. 783 (1873).
47 Brief for respondent Secretary of State at 30.
48 See, Lemon v. Gale, supra note 17; Mekota v. State Board of Equalization
and Assessment, supra note 22.
49 Brief for respondent Secretary of State at 23.

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felons outside of executive clemency.” 50 These statements are
not historically correct. And since the statutory history recited
in the per curiam opinion is limited, I expand on it here.
When the constitution was adopted in the fall of 1875, the
1873 statute discussed above was not the only law providing
a method for restoring a felon’s civil rights. Another statute
in effect at the time provided an alternative method to restore
civil rights through a “warrant of discharge.” 51 That statute,
adopted in February 1875, authorized inmates confined in the
penitentiary to earn a reduction in the term of their sentence for
good conduct, and further provided:
The governor shall, upon receiving certificate of good
conduct from the warden and inspectors, immediately
issue his warrant for discharge of such convict; said war-
rant shall in all cases restore the prisoner to civil rights
the same as though a pardon had been issued. 52
The Legislature’s enactment of this statute likely explains why,
by 1905, this court described it as the “custom” when discharg-
ing a prisoner to include a provision restoring civil rights “the
same as though a pardon had been granted.” 53
As such, when the constitution was adopted in 1875, there
were statutes on the books authorizing at least two meth-
ods for restoring civil rights after a felony conviction—one
method relied on a general pardon, and the other relied on a
warrant of discharge to restore civil rights without a pardon.
Presumably, the framers were aware of both statutory methods
when they selected the passive phrase “unless restored to civil
rights” for inclusion in article IV, § 2. The existence of alter-
native statutory methods for restoring civil rights in 1875 seri-
ously undermines the respondents’ contention that the framers
intended that only a pardon could restore civil rights.
50 Id. at 30.
51 See 1875 Neb. Laws, General Laws, p. 33, § 3.
52 Id. (emphasis supplied) (later codified as Rev. Stat. § 9234 (1913)).
53 See Turley, supra note 45, 74 Neb. at 476, 104 N.W. at 936.

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It is also significant that, in the years after the constitu-
tion was adopted, the Legislature continued to recognize
multiple methods for restoring civil rights. After the Board
of Pardons was authorized by constitutional amendment in
1920, 54 the Legislature amended the 1873 statute referenced
above to provide that any “general pardon” restoring civil
rights must come from the Board of Pardons. 55 Eventually
codified as Neb. Rev. Stat. § 29-112 (Cum. Supp. 1951), this
statute remains part of Nebraska’s criminal procedure statutes
today. 56 Section 29-112 has been amended several times over
the years, and it has always both mandated the disenfran-
chisement of persons “sentenced” for felonies that were not
reversed or annulled, and established various methods for
reenfranchisement.
Creation of the Board of Pardons in 1920 also prompted
changes to the warrant of discharge method for restoring civil
rights. 57 The Legislature enacted Comp. Stat. § 10262, which
provided:
Whenever any convict shall have completed the lawful
requirements of his sentence, the board of pardons, upon
receiving [a] certificate of good conduct from the warden,
shall immediately issue a warrant for the discharge of
such convict, and such warrant shall in all cases restore
the prisoner’s civil rights the same as though a pardon
had been issued.
This statute was later codified in the criminal procedure
statutes as Neb. Rev. Stat. § 29-2634 (Reissue 1956), and
for more than 40 years, this statute had the effect of man-
dating the restoration of civil rights, without a pardon, for
54 See Neb. Const. art. IV, § 13 (1920).
55 1951 Neb. Laws, ch. 86, § 1, p. 249.
56 See § 29-112 (Reissue 2016).
57 See, 1921 Neb. Laws, ch. 182, art. II, § 15, p. 694 (1921); Comp. Stat.
§ 10262 (1922).

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felony offenders with good conduct who completed the lawful
requirements of their sentence. 58
In 1959, the Legislature amended § 29-112 to eliminate
the language requiring a “general pardon” and to substitute in
its place the requirement that a “warrant of discharge” from
the Board of Pardons would be the method for restoring a
felon’s civil rights and privileges. 59 This amendment was rec-
ommended by the Attorney General at the time, and the stated
intent of the amendment was to “correct[] an inconsistency” in
the two statutory methods for restoring felons’ civil rights:
Statute 29-2634 provides that a “warrant of discharge”
restores civil rights. However, Section 29-112 provides
that for a prisoner to receive a restoration of his civil
rights, he must have a general pardon. . . . This bill cor-
rects this inconsistency by amending Statute 29-112 to
make it clear that a warrant of discharge does restore
civil rights. As a matter of policy, the Attorney General
states that a warrant of discharge should be sufficient to
require restoration of civil rights. 60
The Attorney General testified in favor of the 1959 bill,
explaining:
A general pardon is a procedure which we use occasion-
ally but largely to keep people from being deported from
this country, because the federal government won’t rec-
ognize anything but a general pardon. To get a general
pardon requires application, notice, notice of hearing,
and a hearing. It is entirely in conflict with other statutes
which provide for a warrant of discharge. 61
58 Accord Turley v. State, supra note 45.
59 1959 Neb. Laws, ch. 117, §§ 1 and 2, pp. 448-49 (codified as § 29-112
(Cum. Supp. 1959)).
60 Statement of Purpose, L.B. 305, Judiciary Committee, 69th Leg. (Feb. 4,
1959).
61 Judiciary Committee Hearing, L.B. 305, 69th Leg. (Feb. 2, 1959).

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As amended in 1959, § 29-112 provided that felons whose
sentences had not been reversed or annulled were “deemed
incompetent to be an elector . . . unless such convict shall
receive from the Board of Pardons of this state a warrant of
discharge, in which case such convict shall be restored to his
civil rights and privileges.” 62
In 1969, Neb. Rev. Stat. § 29-2635 (Reissue 1964) was
repealed as part of a comprehensive overhaul of the statutes
governing pardons and parole. 63 As part of that overhaul, the
Board of Parole was given the authority to restore civil rights
by issuing a “certificate of discharge.” 64 Under the 1969 statu-
tory scheme, the Board of Parole was required to issue a cer-
tificate of discharge “[w]henever any committed offender or
parolee shall have completed the lawful requirements of his
sentence or parole,” and “such certificate shall restore the civil
rights of such committed offender or parolee as though a par-
don had been issued.” 65 In 1975, the Legislature amended the
statute, codified at the time as § 83-1,118(4) (Reissue 1971), to
require that the Director of Correctional Services, rather than
the Board of Parole, would issue the certificate of discharge
restoring civil rights. 66 The director retained that authority
through two more statutory amendments. 67
Then in 2001, the Attorney General issued an advisory
opinion concluding that “the Board of Pardons is not required
to issue a warrant of discharge” and that “restoration of
any civil rights which are forfeited by an offender upon
conviction of a felony is a matter within the discretion of
the Board of Pardons.” 68 The Attorney General reasoned that
62 § 29-112 (Reissue 1964).
63 See 1969 Neb. Laws, ch. 817, § 87, pp. 3112-13.
64 Id., § 49(4), pp. 3098-99.
65 Id. (codified as § 83-1,118(4) (Reissue 1971)).
66 See 1975 Neb. Laws, L.B. 567, § 8.
67 See 1992 Neb. Laws, L.B. 816, § 6, and 1994 Neb. Laws, L.B. 677, § 10.
68 Att’y Gen. Op. No. 01011 (Mar. 23, 2001).

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although the Legislature “purport[ed] to mandate the issuance
of such warrants of discharge by the Board” when it amended
§ 29-112 in 1959, the clemency power belonged exclusively
to the Board of Pardons and thus “the Legislature may not
mandate that the Board of Pardons exercise that power.” 69
The Attorney General’s opinion further concluded that to the
extent § 83-1,118 “purported to restore such civil rights upon
. . . discharge from incarceration” through a certificate of
discharge, it “did not operate to restore such rights.” 70 The
Attorney General reasoned that “the Legislature cannot usurp
the constitutional powers of the Board of Pardons, even if
the Legislature attempts to delegate those powers to another
agency within the executive branch.” 71
In 2002, the Legislature amended the warrant of discharge
provisions in § 29-112 and the certificate of discharge provi-
sions of § 83-1,118. 72 As amended by 2002 Neb. Laws, L.B.
1054, § 29-112 provided that a warrant of discharge issued
by the Board of Pardons had the effect of restoring “such
civil rights and privileges as enumerated or limited by the
Board of Pardons” and “shall not release such person from the
costs of conviction unless otherwise ordered by the Board of
Pardons.” 73 And L.B. 1054 amended § 83-1,118 to provide:
Upon completion of the lawful requirements of the sen-
tence, the [D]epartment [of Correctional Services] shall
provide the parolee or committed offender with a written
notice regarding his or her civil rights. The notice shall
inform the parolee or committed offender that voting
rights are not restored upon completion of the sentence.
The notice shall also include information on restoring
69 Id.
70 Id.
71 Id.
72 See 2002 Neb. Laws, L.B. 1054, §§ 3 and 28.
73 § 29-112 (Cum. Supp. 2002).

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such civil rights through the pardon process, including
application to and hearing by the Board of Pardons. 74
In 2005, the Legislature again amended §§ 29-112 and
83-1,118. 75 As amended by 2005 Neb. Laws, L.B. 53, § 29-112
no longer required a warrant of discharge from the Board of
Pardons to restore voting rights, and instead provided: “Any
person sentenced to be punished for any felony, when the sen-
tence is not reversed or annulled, is not qualified to vote until
two years after he or she has completed the sentence, includ-
ing any parole term. The disqualification is automatically
removed at such time.” 76 However, L.B. 53 still required a
warrant of discharge from the Board of Pardons to restore the
right to serve on a jury and to hold public office. 77 Similarly,
L.B. 53 amended § 83-1,118(5) to provide:
Upon completion of the lawful requirements of the sen-
tence, the department shall provide the parolee or com-
mitted offender with a written notice regarding his or
her civil rights. The notice shall inform the parolee or
committed offender that voting rights are restored two
years after completion of the sentence. The notice shall
also include information on restoring such other civil
rights through the pardon process, including application
to and hearing by the Board of Pardons. 78
L.B. 53 was passed over a gubernatorial veto, but the constitu-
tionality of the act was not challenged in the courts during the
time it remained in effect.
And most recently, in 2024, the Legislature passed L.B.
20, which again amended §§ 29-112 and 83-1,118. 79 As
amended by L.B. 20, § 29-112 now provides: “Any person
74 § 83-1,118(5) (Cum. Supp. 2002).
75 See 2005 Neb. Laws, L.B. 53, §§ 1 and 7.
76 § 29-112 (Cum. Supp. 2006).
77 See id.
78 § 83-118(5) (Cum. Supp. 2006).
79 2024 Neb. Laws, L.B. 20, §§ 1 and 7.

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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.”
However, L.B. 20 still requires a warrant of discharge from
the Board of Pardons to restore the right to serve on a jury
and to hold public office. 80
L.B. 20 also amended the relevant provision in § 83-1,118,
which now provides:
(4) Upon completion of the lawful requirements of
the sentence, the department shall provide the parolee or
committed offender with a written notice regarding his
or her civil rights. The notice shall inform the parolee or
committed offender that voting rights are restored upon
completion of the sentence. The notice shall also include
information on restoring other civil rights through the
pardon process, including application to and hearing by
the Board of Pardons. 81
Several election statutes were also amended by L.B. 20, includ-
ing those governing the voter registration process and related
forms and notices. 82 As noted by the per curiam opinion, the
Governor declined to sign L.B. 20 but allowed it to become
law without his signature. 83
To summarize, this complicated statutory history illustrates
that from 1873 to 1959, § 29-112 and its predecessor statutes
conditioned reenfranchisement on a “general pardon.” But
from 1875 to 1969, a “warrant of discharge” was considered
a statutory alternative to a pardon that had the effect of auto-
matically “restor[ing] the prisoner’s civil rights the same as
80 Id., L.B. 20, § 1.
81 Id., L.B. 20, § 7.
82 See id., §§ 4 and 5 (amending Neb. Rev. Stat. §§ 32-312 (Cum. Supp.
2022) and 32-313 (Reissue 2016)).
83 See Legislative Journal, 108th Leg., 2d Sess. 1804-05 (Apr. 17, 2024).

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though a pardon had been issued.” 84 And from 1969 to 2002,
the Legislature authorized other executive branch officers to
automatically restore felons’ civil rights through a “certificate
of discharge” once their sentence was served. 85 This statutory
history refutes the respondents’ claims that for “132 years,
Nebraska re-enfranchised felons exclusively through execu-
tive clemency” 86 and that it “was not until 2005 . . . that a
statute first attempted to re-enfranchise felons outside of
executive clemency.” 87
It is also relevant that statutes authorizing a variety of
reenfranchisement methods have been on the books through
every constitutional amendment since 1875, yet the text of
article VI, § 2, remains the same today as it was in 1875.
And until this year, no court has considered a claim that any
of the many statutory reenfranchisement methods violate the
separation of powers. We have recognized that “[w]hile long-
standing practices of government may not be determinative
of a constitutional question, as the U.S. Supreme Court has
recognized, they can inform a determination of whether a
particular delegation of power is constitutional.” 88 That prin-
ciple applies here, and it weighs heavily against a finding of
unconstitutionality.
RESPONDENTS HAVE NOT CLEARLY ESTABLISHED
THEIR SEPARATION OF POWERS CLAIM
In my opinion, the respondents have failed to clearly show
that either the constitutional text, or the history of voter
84 See, 1875 Gen. Laws, p. 33, § 3; Rev. Stat. § 9234 (1913); Comp. Stat.
§ 10262 (1922); Neb. Rev. Stat. § 29-2634 (Reissue 1956).
85 See 1969 Neb. Laws, ch. 817, § 49(4), pp. 3098-99; 1975 Neb. Laws, L.B.
567, § 8; 1992 Neb. Laws, L.B. 816, § 6; and 1994 Neb. Laws, L.B. 677,
§ 10. Accord Ways v. Shively, supra note 4.
86 Brief for respondent Secretary of State at 23.
87 Id. at 30.
88 State v. Gnewuch, supra note 13, 316 Neb. at 73-74, 3 N.W.3d at 316.

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reenfranchisement laws in Nebraska, supports their assertion
that the phrase “unless restored to civil rights” was intended
by the framers to refer only to reenfranchisement by execu-
tive pardon. And without such a showing, they cannot clearly
establish that “the Constitution makes executive clemency
the exclusive vehicle to re-enfranchise felons,” 89 or that the
reenfranchisement provisions in L.B. 20 have the effect of
“exercis[ing] a power assigned by the Constitution to the
Board of Pardons.” 90 Because the respondents have not over-
come the presumption that L.B. 20 is constitutional, their sepa-
ration of powers claim should be rejected by this court.
On this record, I see no reason to engage in a lengthy sepa-
ration of powers analysis because the respondents have not,
and cannot, clearly establish their foundational premise that
the phrase “unless restored to civil rights” was intended by the
framers to refer exclusively to reenfranchisement by executive
pardon. In other words, since the respondents never established
that the power to reenfranchise felons was given exclusively
to the executive pardoning authority in the constitution, there
is no need to ask whether it would violate the separation
of powers clause for the Legislature to enact reenfranchise-
ment statutes.
That said, if I had been persuaded that a careful separation
of powers analysis was warranted, I would apply the frame-
work this court uses when analyzing the overlapping exercise
of constitutionally permitted powers. 91 The history described
above illustrates that for more than a century both the leg-
islative and executive branches have staked out territory in
89 Brief for respondent Secretary of State at 25-26.
90 Id. at 25.
91 See, generally, State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d
788 (2017); Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016). See,
also, State v. Gnewuch, supra note 13.

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the realm of felon reenfranchisement. And both branches can
point to express constitutional authority for doing do so. 92
As stated, the relators generally argue the power to restore
voting rights falls naturally within the express constitutional
power of the Legislature to implement the provisions of
article VI, § 2, and to declare what is the law and public
policy of this state. And the respondents generally argue that
because a pardon nullifies the legal consequences of a felony
conviction, 93 the power to restore voting rights falls naturally
within the constitutional authority expressly granted to the
Board of Pardons in article IV, § 13.
When called upon to analyze the overlapping exercise of
constitutionally permitted powers, this court has focused on
the extent to which one branch is prevented from accomplish-
ing its constitutionally assigned functions, balanced against
the other branch’s need to promote the objectives within its
constitutional authority. 94 In doing so we have considered the
following factors: (1) the essential nature of the power being
exercised, (2) the degree of control by one department over
another, (3) the objective sought to be attained by that branch’s
exercise of power, and (4) the practical result of the blend-
ing of powers as shown by actual experience over a period
of time. 95
In this mandamus action, we have not been presented with
a stipulated record that would permit thoughtful application of
92 See, e.g., Neb. Const. art. III, § 30 (Legislature given express authority
to pass all laws necessary to carry into effect provisions of constitution);
Neb. Const. art. IV, § 13 (Board of Pardons given express authority to
grant pardons in all cases of conviction for offenses).
93 See Kocontes v. McQuaid, supra note 9, 279 Neb. at 352, 778 N.W.2d at
424 (defining pardon as “‘officially nullifying punishment or other legal
consequences of a crime’”).
94 See, State ex rel. Veskrna v. Steel, supra note 91; Adams v. State, supra
note 91. See, also, State v. Gnewuch, supra note 13.
95 State ex rel. Veskrna v. Steel, supra note 91. See State v. Gnewuch, supra
note 13.

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these four factors. But I have serious doubts about whether the
respondents could establish that the reenfranchisement provi-
sions of L.B. 20, which take effect only after an offender has
completed his or her sentence, prevent the Board of Pardons
from 	accomplishing 	any 	of 	its 	constitutionally 	assigned
functions. 96
RESPONDENTS’ ALTERNATIVE CONSTITUTIONAL
CHALLENGE HAS NO MERIT
The respondents’ alternative constitutional claim is far less
complicated. They argue that even if the Legislature does have
the authority to enact statutes restoring voting rights, L.B. 20
does not accomplish that goal because article VI, § 2, uses the
plural term “civil rights” and that “forecloses restoration of
the franchise by itself.” 97 In other words, the respondents con-
tend that the only constitutionally permissible way to restore
the right to vote under article VI, § 2, is to simultaneously
restore other civil rights too. I am not persuaded.
In Ways v. Shively, when considering the constitutional
phrase “unless restored to civil rights” as part of our statutory
analysis, this court observed that “[t]he right to vote is a civil
right” and that “the restoration referred to in Neb. Const. art.
VI, § 2, is the restoration of the right to vote.” 98 Both seem
obvious, and such a construction is consistent with the canon
that when considering the meaning of a constitutional provi-
sion, it is proper to consider the objects sought to be accom-
plished, to consider the scope of the remedy its terms imply,
and to give it such an interpretation as appears best calculated
to effectuate the design of the constitution. 99 Because this
court has already construed the phrase “unless restored to civil
rights” in article VI, § 2, to be referring to restoration of a
96 See Neb. Const. art. IV, § 13.
97 Brief for respondent Secretary of State at 26.
98 Ways v. Shively, supra note 4, 264 Neb. at 255, 546 N.W.2d at 626.
99 See State ex rel. School Dist. of Scottsbluff v. Ellis, supra note 25.

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felon’s right to vote and not to restoration of all civil rights, I
cannot find the respondents have carried their burden to clearly
show that the only constitutionally permissible way to restore
the right to vote under article VI, § 2, is to simultaneously
restore other civil rights too.
RELATORS ARE ENTITLED
TO PEREMPTORY WRIT
On this record, the respondents have not met their burden
to clearly establish that the reenfranchisement provisions of
L.B. 20 are unconstitutional under either of the two theories
they advance. The relators, on the other hand, have shown
that they have a clear right to the relief sought, that there is a
clear duty on the part of the respondents to comply with and
implement the provisions of L.B. 20, and that because the reg-
istration deadline for voting in the 2024 general election is fast
approaching, they have no other plain and adequate remedy
available in the ordinary course of law. I agree the peremptory
writ should issue, directing the respondents to comply in all
respects with L.B. 20.
Papik, J., concurring.
I concur in the issuance of the writ of mandamus.
As to whether the respondents should be able to raise the
constitutionality of the reenfranchisement provisions of 2024
Neb. Laws, L.B. 20, in this mandamus proceeding, I do not
believe we need to reach the question. I would not reach the
question because even assuming the question of constitu-
tionality may be raised, on this record, I do not believe the
respondents have carried their burden to show that the reen-
franchisement provisions of L.B. 20 are unconstitutional.
In my analysis of the merits of the constitutional issue, two
principles are paramount. First, that in determining the mean-
ing of the Nebraska Constitution, “[t]he intent and under-
standing of its framers and the people who adopted it as
expressed in the instrument is the main inquiry in construing

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it.” State ex rel. State Railway Commission v. Ramsey, 151
Neb. 333, 340, 37 N.W.2d 502, 507 (1949). Second, that in
deciding whether a statute violates the constitution, courts are
to presume that statutes are constitutional and to resolve all
doubts in favor of constitutionality. See State ex rel. Peterson
v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021). Applying
those principles in this case, I have doubts about whether the
Nebraska Constitution would have originally been understood
to prohibit the legislative restoration of the right to vote. I
explain why below.
First, article VI, § 2, of the constitution merely states that
individuals convicted of felonies cannot vote “unless restored
to civil rights,” but does not specify how civil rights can be
restored. If the framers of the constitution had intended to
make restoration of the right to vote contingent on action of
the pardoning authority, they easily could have done so with-
out leaving the issue to implication.
Moreover, as discussed in greater detail in Justice Stacy’s
opinion, there is a significant history of statutes providing for
the restoration of civil rights outside of the unfettered discre-
tion of the pardoning authority. It is particularly difficult for
me to conclude that the constitution was originally understood
to leave the question of restoration of civil rights exclusively
to the unfettered discretion of the pardoning authority, when
a statute passed in 1875—the same year the constitution was
enacted—provided that the Governor “shall, upon receiving
certificate of good conduct from the warden and inspectors,
immediately issue his warrant for discharge of such convict;
said warrant shall in all cases restore the prisoner to civil
rights the same as though a pardon had been issued.” 1875
Gen. Laws, p. 33, § 3 (later codified as Rev. Stat. § 9234
(1913)). This statute remained in effect until 1921, when,
after the Board of Pardons was formed, it was amended to
require the Board of Pardons to issue a warrant of discharge
and provided that “such warrant shall in all cases restore
the prisoner’s civil rights the same as though a pardon had

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been issued.” Comp. Stat. § 10262 (1922). See, also, Turley
v. State, 74 Neb. 471, 476, 104 N.W. 934, 936 (1905) (refer-
ring to “custom” of discharge order “declaring the convict to
be restored to all his civil rights in all respects the same as
though a pardon had been granted”).
These early statutes appear to compel the Governor, and
later the Board of Pardons, to restore the civil rights of cer-
tain offenders upon completion of their sentences. They thus
cast doubt upon the respondents’ position that, under the
constitution, restoration of voting rights was left to the unfet-
tered discretion of the pardoning authority. Statutes enacted
contemporaneously with constitutional provisions are recog-
nized as strong evidence of constitutional meaning. See, e.g.,
Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed. 2d
583 (1986).
As for the respondents’ separation of powers argument
embraced by some of my colleagues, I acknowledge that the
respondents make a plausible case that the restoration of vot-
ing rights shares some attributes of a pardon or partial pardon.
But given the considerations mentioned above, I nonetheless
have doubts about whether the separation of powers provision
of the Nebraska Constitution was originally understood to for-
bid a legislative role in the restoration of voting rights.
With respect to the respondents’ alternative argument that
the reenfranchisement provisions of L.B. 20 are unconstitu-
tional, I agree with Justice Stacy’s reasoning and likewise
am not convinced the Nebraska Constitution was originally
understood to require the restoration of multiple civil rights in
order to restore the right to vote.
As discussed in Chief Justice Heavican’s opinion, this case
has required this court, on a short timeframe, to analyze the
original meaning of constitutional and statutory provisions
adopted over a century ago. Having considered the record,
the relevant history, and the arguments made by the parties in
that short timeframe, I lack the “clear and strong conviction”
necessary to find the reenfranchisement provisions of L.B. 20

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unconstitutional. See Planned Parenthood of the Heartland v.
Hilgers, ante p. 217, 227, 9 N.W.3d 604, 612 (2024) (internal
quotation marks omitted).
Miller-Lerman, 	J., 	concurring 	in 	part, 	and 	in 	part
dissenting.
Because I do not believe that constitutionality of statute can
be raised as a defense to mandamus, I dissent from the rea-
soning of the per curiam opinion to the contrary and I would
conclude the constitutionality of statute is not properly before
us. Nevertheless, because I conclude 2024 Neb. Laws, L.B. 20,
and 2005 Neb. Laws, L.B. 53, are constitutional, and I agree
that the writ of mandamus should issue and order the Nebraska
Secretary of State and election commissioners to obey the
laws and register to vote felons who have completed their sen-
tences, I concur in the result.
Further, at the risk of seeming impolite and wishing it were
otherwise, I write separately because of my belief that the sep-
aration of powers issue in this case includes not only the obvi-
ous tension between the executive and legislative branches, but
also the tension between the executive and judicial branches.
In this regard, despite a challenge by the executive branch, I
believe the true separation of powers story of this case is ulti-
mately the preservation of the judiciary’s power, including the
power to declare what statutes are constitutional.
In answer to the per curiam and other separate opinions, as
to procedure: On July 17, 2024, 2 days before L.B. 20 would
have gone into effect, thus restoring felons’ eligibility to regis-
ter to vote in the current election year, and nearly two decades
after L.B. 53 was passed in 2005, the state actors issued a
nonbinding opinion followed by a directive to reject voter
registrations. Why now? Why not take the opportunity to chal-
lenge the laws long ago with available remedies, rather than
creating uncertainty at this time? Why did the court enable the
tardiness by expanding mandamus?

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In answer to the dissenting view as to substance: The res-
toration of voting rights by the Nebraska Legislature is not
a full restoration of civil rights; it is not a full pardon, which
is reserved to Nebraska’s Board of Pardons in the executive
branch. See Neb. Const. art. IV, § 13. And it is not a “form of
pardon” or a “partial pardon” as that term was understood in
the 1800s when article VI, § 2, of the Nebraska Constitution
was written. Article VI, § 2, creates the right of reenfranchise-
ment for felons who have completed their sentences, but it
is not self-executing. The mechanism for restoration of this
right by statute enacted by the Legislature does not dimin-
ish or impair the Board of Pardons, composed of Nebraska’s
Governor, Attorney General, and Secretary of State located in
the executive branch, nor violate constitutional separation of
powers found in Neb. Const. art. II, § 1. In my view, L.B. 20
and L.B. 53 are constitutional. If L.B. 20 and L.B. 53 were
declared unconstitutional as urged by some members of the
court, such decision would effectively disenfranchise the nearly
59,000 felons who were eligible to vote in 2005 under L.B. 53,
and would take away a right. Reenfranchisement of felons is
a policy decision. The Legislature made that policy decision
when it adopted L.B. 20 and L.B. 53. An opinion that would
find the statutes unconstitutional would not protect separation
of powers, but contrary to the constitution, would enable con-
solidation of power in the executive branch. If the statutes were
declared unconstitutional as urged by some members of the
court, the elected officials would choose their voters instead of
the other way around.
Procedure. Timing Is Everything. Let the Games
Begin or Was It Mere Coincidence? Question:
Who Decides Constitutionality of Statutes?
Answer: The Judicial Branch.
Knowledge of the timeline is important to understanding
how the court came to accommodate the State and expanded
mandamus jurisprudence in the process. In my view, the

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calendar was manipulated and it is troubling that the court
rewarded it. Rather than limit itself to the issue of whether a
state officer followed the law, the court ill-advisedly expanded
the mandamus proceedings in an original action to a full-
blown preelection constitutionality of statutes challenge. In my
view, this was not warranted.
In an original action, State v. Douglas County, 18 Neb.
506, 507, 26 N.W. 315, 315 (1886) (Lytle), the Nebraska
Supreme Court was concerned about the limited time available
for thoughtful deliberations, and denied a writ of mandamus
seeking to declare a statute unconstitutional on the “eve of an
election.” The court said the issues are “important,” id., but
the “presumption is that the [L]egislature has done its duty,
and that an act passed by it is not in conflict with the constitu-
tion[;] and it is the duty of all ministerial officers to obey it
until the act is declared invalid,” id. at 508, 26 N.W. at 316.
The dangers about which Lytle warned are evident in the cri-
sis atmosphere and unnecessarily compressed timeline of the
instant case.
The Nebraska Supreme Court has followed the Lytle hold-
ing in original actions. But the per curiam opinion and other
opinions invoke Van Horn v. State, 46 Neb. 62, 64 N.W. 365
(1895), which involved an appeal from district court, rather
than an original action, and permitted an unconstitutionality
defense in a mandamus action. The case is distinguishable, and
even Van Horn warned that ministerial officers who did not
obey a statute did so at their “peril.” 46 Neb. at 83, 64 N.W.
at 372. Further, the members of the court accurately recognize
that the Van Horn rule is the minority view, see, e.g., Lockyer
v. City and County of San Francisco, 33 Cal. 4th 1055, 1105
n.34, 95 P.3d 459, 489 n.34 (2004), and that Van Horn has
been criticized, see, e.g., Barr v. Watts, 70 So. 2d 347 (Fla.
1953), but nevertheless, the other opinions softly and conve-
niently endorse it—at least for now.
I further note that in State v. State Board of Equalizers, 84
Fla. 592, 597-98, 94 So. 681, 683 (1922), it was stated:

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The right to declare an act unconstitutional is purely
a judicial power, and cannot be exercised by the officers
of the executive department under the guise of the obser-
vance of their oath of office to support the Constitution.
It is true that the Supreme Court of Nebraska in Van
Horn v. State, 46 Neb. 62, 64 N.W. 365, and a few other
courts have held that ministerial officers had that right,
but there are so many better reasoned cases to the con-
trary that we will not adopt the Nebraska doctrine.
A higher sense of duty was thus expressed by President
Lincoln in his First Inaugural Address to Congress:
“I do suggest that it will be much safer for all, both in
official and private stations, to conform to and abide by
all those acts which stand unrepealed than to violate any
of them trusting to find impunity in having them held to
be unconstitutional.”
Instead of Van Horn, State ex rel. Wright v. Pepperl, 221
Neb. 664, 380 N.W.2d 259 (1986), in which this court ordered
the public official to publish material in accordance with the
statute, is more on point. In Pepperl, we said that in a man-
damus action the public official “has no right to raise the
constitutionality of an act as a defense to his or her failure”
to do the act required by statute, thus implicitly overruling
Van Horn. 221 Neb. at 673, 380 N.W.2d at 265. Similarly, in
the instant case, the Secretary of State should and is hereby
ordered, inter alia, to publish the registration form in the
words of L.B. 20 until relieved of this duty by separate action
properly raising constitutionality.
In connection with our review of L.B. 20 and L.B. 53, we
recently stated settled principles in State v. Gnewuch, 316 Neb.
47, 57-58, 3 N.W.3d 295, 306-07 (2024), as follows:
The principles guiding our review of the constitution-
ality of a legally enacted statute are well-established. A
statute is presumed to be constitutional, and all reason-
able doubts are resolved in favor of its constitutionality.
The party challenging the constitutionality of a statute

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bears the burden to clearly establish the unconstitution-
ality of a statutory provision. It is not the province of
a court to annul a legislative act unless it clearly con-
travenes the constitution and no other resort remains.
A penal statute must be construed so as to meet consti-
tutional requirements if such can reasonably be done.
Where a statute is susceptible of two constructions,
under one of which the statute is valid while under the
other it is unconstitutional or of doubtful validity, that
construction which gives it validity should be adopted.
We have long held that state officers are not free to ignore
statutory duties and recently stated:
Although an Attorney General’s opinion is entitled to
substantial weight and is to be respectfully considered,
it nonetheless has no controlling authority on the state of
the law discussed in it and, standing alone, is not to be
regarded as legal precedent or authority of such character
as is a judicial decision.
State ex rel. Peterson v. Shively, 310 Neb. 1, 10, 963 N.W.2d
508, 516 (2021). See, also, State v. Coffman, 213 Neb. 560,
330 N.W.2d 727 (1983).
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 super-
majority 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. We recently reiterated that everyone is presumed to know
this law and is bound to take notice of it. See, e.g., Vyhlidal
v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022). 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,

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§ 2, that it is the Nebraska Supreme Court, not the Attorney
General, who declares laws unconstitutional. I do not agree
with the view that under article V, § 2, other officers of the
State may also assess the constitutionality of statutes. If they
harbor questions about the constitutionality of a particular stat-
ute such as the reenfranchisement statutes at issue, rather than
refuse to obey the law, there are specific legal mechanisms to
be followed to challenge the statute. Waiting to be named as
a respondent in a writ of mandamus by an injured party in an
original action before the Nebraska Supreme Court was not,
until now, one of them. In this case, doing so leads to a loss
of public trust in the voting system. Why now? Referring to
voter suppression, one federal judge has observed that vot-
ing rights have become partisan and the “spigot [of voting
rights] is turned on or off depending on whether politicians
perceive they will benefit from the expansion or contraction
of the electorate.” Hand v. Scott, 285 F. Supp. 3d 1289, 1310
(N.D. Fla. 2018), vacated and remanded sub. nom. Hand v.
DeSantis, 946 F. 3d 1272 (11th Cir. 2020). Voting rights in
Nebraska were almost contracted today by this court.
The underlying facts are recited in the per curiam opinion.
Familiarity therewith is assumed. To understand how this case
procedurally nearly swallowed two statutes, I offer the fol-
lowing timeline: L.B. 20, which restored to felons who had
served their sentences the right to vote, became effective July
19, 2024. See 2024 Laws, L.B. 20, § 1. But 2 days earlier,
the Attorney General issued his opinion, Att’y Gen. Op. No.
24-004 (July 17, 2024), that L.B. 20 and L.B. 53 (effective
since 2005) were unconstitutional. Also on July 17, contrary
to L.B. 20, the Secretary of State, in reliance on the Attorney
General opinion, directed election commissioners to refuse
to register felons who had served their sentences and, fur-
thermore, created a voter registration form that violated the
language contained in L.B. 20.
Central to my concern about this whole felon voter episode
is the fact that the state actors claim that they were impotent

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to raise their constitutional challenge earlier. The facts, how-
ever, are to the contrary. On July 17, 2024, Neb. Rev. Stat.
§ 84-215 (Reissue 2014), first enacted in 1977, was in effect
and provided in part as follows:
When the Attorney General issues a written opinion
that an act of the Legislature is unconstitutional and any
state officer charged with the duty of implementing the
act, in reliance on such opinion, refuses to implement the
act, the Attorney General shall, within ten working days
of the issuance of the opinion, file an action in the appro-
priate court to determine the validity of the act.
On July 17, 2024, all the statutory and factual predicates
of § 84-215 had occurred and the Attorney General’s duty
to commence a lawsuit to test the constitutionality of L.B.
20 and L.B. 53 attached. The Attorney General did not com-
mence a lawsuit. The net effect was to deter voting and voter
registration—one such example being an original petitioner in
this case withdrew his request to register and was voluntarily
dismissed from this action.
The Attorney General’s office is not ignorant about its duties
under § 84-215. Indeed, Hilgers v. Evnen, docketed as case No.
S-24-221, had been commenced by the Attorney General under
§ 84-215 and is currently pending in this court.
The capable Attorney General’s office protested to this
court that there was not enough time to commence a lawsuit
to test the constitutionality of L.B. 20 and L.B. 53 before the
impending repeal of § 84-215 on July 19, 2024. For one thing,
this ignores the fact that other remedies remained available,
including under Neb. Rev. Stat. § 84-217 (Reissue 2024).
For another, a 1996 Attorney General opinion concluded that
restoration of voting rights by statute is unconstitutional,
so the Attorney General’s office has known its position on
constitutionality for decades. See Att’y Gen. Op. No. 96023
(Mar. 18, 1996). And for another, the Governor urged the
Attorney General and Secretary of State to challenge L.B. 20
months ago.

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How could the Attorney General’s office not know, since
its opinion in 1996, that a statute like L.B. 53 was suspect
in 2005 and that L.B. 20 was suspect when it passed in April
2024? Further, in April 2024, the Governor allowed L.B. 20 to
become law without his signature. In a letter to the Legislature,
the Governor explained that “[t]he Attorney General and
Secretary of State have identified significant potential con-
stitutional infirmities regarding the bill.” Legislative Journal,
108th Leg., 2d Sess. 1804 (Apr. 17, 2024). The Governor
“encourage[d] the Attorney General and the Secretary of State
to promptly take such measures as are appropriate in light of
the constitutional infirmities.” Id. at 1805. So the Attorney
General’s office had at least 3 months from April to July 2024
to prepare its opinion regarding L.B. 20 and nearly 20 years to
prepare its opinion regarding L.B. 53, the substance of which
the office was aware of since 1996. But it did not “promptly
take such measures” as encouraged by the Governor until the
clock on § 84-215 was about to run out and the felon reen-
franchisement statute was set to begin. The issuance of the
Attorney General’s opinion on July 17, 2024, was a choice,
and respectfully, I am unable to see how it was in service of
good government.
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 vari-
ous 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

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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.
In this case, felons who had served their sentences and a
nonprofit association claiming associational standing, as the
petitioners, brought a mandamus action to compel the Secretary
of State and election commissioners, as the respondents, to
perform their duty under L.B. 20 while it was validly the law
of Nebraska. Mandamus is a law action and represents an
extraordinary remedy, not a writ of right. State ex rel. Wagner
v. Evnen, 307 Neb. 142, 948 N.W.2d 244 (2020). Mandamus
relief is available if the relator can show (1) that there exists
a clear right to the relief sought, (2) that the respondent has
a corresponding clear duty to perform the act requested, and
(3) that no other plain and adequate remedy is available in the
ordinary course of the law. See id. In a mandamus action, the
burden lies on the party seeking mandamus to show clearly
and conclusively that the party is entitled to the particular
thing the relator asks, and the respondent is legally obligated
to act. See State ex rel. Parks v. Council of City of Omaha, 277
Neb. 919, 766 N.W.2d 134 (2009).
In this case, the respondents raise and several members of
the court entertain the question of the constitutionality of the
reenfranchisement statutes. In considering this question, we
are guided by familiar standards. The party challenging the
constitutionality of a statute bears the burden to clearly estab-
lish the unconstitutionality of a statutory provision. State ex
rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).
A statute is presumed to be constitutional, and all reason-
able doubts are resolved in favor of its constitutionality. Id.
Regarding the presumption of constitutionality, in a recent
case, we quoted several excerpts from Thomas M. Cooley’s
treatise on constitutional law as follows:
“[W]hen courts are called upon to pronounce the inva-
lidity of an act of legislation, passed with all the forms
and ceremonies requisite to give it the force of law, they

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will approach the question with great caution, examine
it in every possible aspect, and ponder upon it as long
as deliberation and patient attention can throw any new
light upon the subject, and never declare a statute void,
unless the nullity and invalidity of the act are placed,
in their judgment, beyond reasonable doubt.” . . . “‘The
opposition between the constitution and the law should
be such that the judge feels a clear and strong conviction
of their incompatibility with each other.’”
Planned Parenthood of the Heartland v. Hilgers, ante p.
217, 227, 9 N.W.3d 604, 611-12 (2024) (quoting Thomas M.
Cooley, A Treatise on the Constitutional Limitations Which
Rest Upon the Legislative Power of the States of the American
Union (1868)).
The legal significance of the delay in bringing the constitu-
tionality issue to the attention of this court is illustrated by the
concurring opinion of Chief Justice Heavican, which, given
time constraints, declines to reach the constitutional issue.
This concurrence shows that the compressed timeline is anti-
thetical to thoughtful deliberation on a matter as important as
the right to vote.
The majority of decisions have recognized that state offi-
cers cannot question the validity of a statute in an origi-
nal mandamus action such as the instant case. See Annot.,
Unconstitutionality 	of 	Statutes 	as 	Defense 	to 	Mandamus
Proceeding, 129 A.L.R. 941 (1940). The general rule is that “a
public officer whose official statutory duties are of a ministe-
rial character cannot question the constitutionality of the stat-
ute affecting or prescribing them as a defense in a mandamus
proceeding to compel performance thereof.” Id. at 942. L.B.
20 directs the Secretary of State to print instructional voter
registration forms using certain words. This is a ministerial
function. See 2024 Neb. Laws, L.B. 20, § 4. The Secretary of
State refused to do so. I acknowledge that there are exceptions
to the prohibition of raising the constitutionality of a statute as
a defense, such as where such performance affects the public

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official’s interests—the official incurs personal liability or
the official is expected to disburse public funds. 129 A.L.R.,
supra. See Lockyer v. City and County of San Francisco, 33
Cal. 4th 1055, 95 P.3d 459 (2004). For completeness, I note
that we have indicated that a challenge to constitutionality of
a statute might be brought in a case where there is no known
plaintiff with standing. See Greene v. State, 83 Neb. 84, 119
N.W. 6 (1908). But this is not such a case.
Today, the court has expanded mandamus so that mandamus
now promotes disobedience to law by state officers and serves
as a vehicle for constitutional challenges. We have stated “a
system of laws cannot operate on the basis that procedures
may be disregarded and parties may agree to try issues not
properly before a court.” State ex rel. Wright v. Pepperl, 221
Neb. 664, 673, 380 N.W.2d 259, 265 (1986). Today’s per
curiam and other opinions recognizing constitutionality of
statute as a defense to mandamus invite public officials who
have a duty to enforce the law to make individual decisions to
not enforce laws that they think are flawed, to forgo available
remedies, and to await being sued by an injured party, and only
then challenge the law. This development was avoidable, and
I respectfully submit that it is most unfortunate that this court
encourages this apparent scheme.
Substantive Law: Reenfranchisement: Who Does It and
What Is It? Statutory Restoration of Individual Civil Rights
Were Not Little Pardons, Pardons Light, a Form of Pardon,
Remind You of a Pardon, or Partial Pardons When Nebraska
Constitution Was Adopted; Separation of Powers Used to
Consolidate Power in the Executive Branch.
Based on the per curiam and other opinions, we find our-
selves 	with 	greatly 	expanded 	mandamus 	jurisprudence,
whereby state officers can ignore statutes they think are flawed
and wait to be sued, whereupon they present the constitution-
ality of a statute as a defense and this court welcomes them.
Above, I have voiced my objections to this expanded view of

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mandamus proceedings adopted by the court but must proceed
to discuss the substantive merits. Below, I discuss who autho-
rizes reenfranchisement and the nature of reenfranchisement. I
conclude that the Legislature is one branch that may set terms
for reenfranchisement and that reenfranchisement is not a
pardon. I therefore conclude that L.B. 20 and L.B. 53 do not
violate the separation of powers clause and are constitutional,
and I therefore concur with the result of the per curiam opinion
to issue the writ of mandamus.
The respondents urge, and many members of the court
seem to have agreed, that restoration of voting rights, which
is one of many civil rights, is a partial pardon or a form of
pardon and that only the Board of Pardons can restore that
right. This view ignores the overlap of functions of the three
branches and instead treat the issue as a zero-sum game. But
their fear that the role of the Board of Pardons in the execu-
tive branch will be impaired or diminished by an act of the
legislative branch that automatically reenfranchises former
felons is unfounded.
We recently observed in State v. Gnewuch, 316 Neb. 47,
72-73, 3 N.W.3d 295, 315 (2024), as follows:
The three branches sometimes overlap in the exercise
of their constitutionally delegated powers. This overlap
may sometimes result in the three departments having
a limited partial agency in or control over the acts of
each other. But the constitutional principle of separation
of powers demands that in the course of any overlap-
ping exercise of the three branches’ powers, no branch
may significantly impair the ability of any other in its
performance of its essential functions. An analysis of the
overlapping exercise of constitutionally delegated powers
focuses on the extent to which one branch is prevented
from accomplishing its constitutionally assigned func-
tions, balanced against the other branch’s need to promote
the objectives within its constitutional authority.

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Certain of today’s opinions seem to reject the existence of
an overlapping exercise of power. Indeed, as relevant here,
Neb. Const. art. IV, § 13, quoted below, literally anticipates
instances of comity between the executive and the legislative
branches. For example, the provision provides that in the case
of execution for treason, the Governor, an executive officer,
can refer the matter to the legislative branch for a possible
pardon. The provision also provides that the Board of Parole
shall grant parole “under such conditions as may be pre-
scribed by law.” Neb. Const. art. IV, § 13. This illustrates that
some executive functions under the constitution are not self-
executing and are implemented by the Legislature. The limi-
tations of the pardon power are grounded in the constitution
itself. This complimentary view of the executive and legisla-
tive branches regarding disenfranchisement has existed since
Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366 (1866).
There are statutes elsewhere that explicitly state that their pro-
visions do not impair executive powers, such as the original
federal parole statute discussed in Duehay v. Thompson, 223
F. 305, 306 (9th Cir. 1915) (describing parole statute providing
that “‘nothing herein contained shall be construed to impair
the power of the President of the United States to grant par-
don or commutation . . . .’ Act June 25, 1910, c. 387, 36 Stat.
819, Fed. Stat. Ann. (Supp. 1912) p. 306 (Comp. St. 1913,
§§ 10535-10544)”). Indeed, as an illustration, as recently as
March 4, 2024, in Trump v. Anderson, 601 U.S. 100, 109-10,
144 S. Ct. 662, 218 L. Ed. 2d 1 (2024), the U.S. Supreme
Court recognized that U.S. Const. amend. XIV, § 5, enables
Congress to pass “‘appropriate legislation’” to “‘enforce’” that
amendment and “‘casts upon Congress the responsibility of
seeing to it, for the future, that all the sections of the amend-
ment are carried out in good faith.’”
The constitutional separation of powers provision occasion-
ally generates a dispute between two of the three coequal
branches of state government. We have observed that decid-
ing whether a branch has exceeded its authority under the

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Nebraska Constitution is a delicate exercise in constitutional
interpretation. In re Petition of Nebraska Community Corr.
Council, 274 Neb. 225, 738 N.W.2d 850 (2007). Looking
at the instant case, by failing to focus on the text of the
Nebraska Constitution, by relying on dictionary definitions,
and by failing to acknowledge the role of the Legislature in
restoring voting rights, the respondents and certain opinions
of this court ignore the lessons of the original history of voter
reenfranchisement and the environment in which article VI,
§ 2, was adopted. In the end, at the expense of comity, several
members of this court would invoke separation of powers in
article II, § 1, to consolidate power exclusively in the execu-
tive branch when it comes to voting.
To discern the original understanding of the framers and
ratifiers of our constitution, see State ex rel. State Railway
Commission v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 (1949),
we have said our state constitution must be construed in the
light of the history of the commonwealth, the surrounding
circumstances, the subject matter under consideration, and the
object sought to be attained, as well as the system of laws that
were in force in the territory at the time of its adoption. State
ex rel. Johnson v. Chase, 147 Neb. 758, 25 N.W.2d 1 (1946).
Contrary to the view of other members of this court, in the
legal environment in which the Nebraska Constitution was
passed, general acts of amnesty such as pardons were not
reserved exclusively to the executive branch. Thus, in 1896,
the U.S. Supreme Court in Brown v. Walker, 161 U.S. 591, 601,
16 S. Ct. 644, 40 L. Ed. 819 (1896), stated:
The act of Congress in question securing to witnesses
immunity from prosecution is virtually an act of general
amnesty, and belongs to a class of legislation which is
not uncommon either in England, (2 Taylor on Evidence,
§ 1455, where a large number of similar acts are col-
lated,) or in this country. Although the Constitution vests
in the President “power to grant reprieves and pardons
for offences against the United States, except in cases

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of impeachment,” this power has never been held to
take from Congress the power to pass acts of general
amnesty . . . .
Similar observations regarding overlapping powers were appli-
cable to state government. See Daniel T. Kobil, The Quality
of Mercy Strained: Wrestling the Pardoning Power From the
King, 69 Tex. L. Rev. 569, 615 n.291 (1991) (cases collected).
The foregoing admits of a comfort with overlapping authority
that I believe applies to this case.
If L.B. 20 and L.B. 53 were declared unconstitutional,
reenfranchisement would be placed exclusively in the oblique,
discretionary, and lengthy process of the Board of Pardons,
which process, according to the record, can only be com-
menced 10 years after final discharge. In this regard, the
courts have been “wary of election schemes that afford discre-
tion” in decisions of reenfranchisement, which can obfuscate
intent. See Melissa C. Chiang, Some Kind of Process For
Felon Reenfranchisement, 72 U. Chi. L. Rev. 1331, 1334 n.14
(2005). For example, in Shepherd v. Trevino, 575 F.2d 1110,
1114 (5th Cir. 1978), the court identified the danger of a dis-
cretionary process by which officers could “then reenfranchise
only those who are, say, white.” For completeness, I note
that unlike Nebraska, in many states, including Georgia and
Connecticut, the power to grant pardons is in a board that does
not include elected officials. See Joseph N. Rupcich, Abusing
a Limitless Power: Executive Clemency in Illinois, 28 S. Ill. U.
L.J. 131 (2003).
The following constitutional provisions are relevant to our
consideration.
Article IV, § 13, provides:
The Legislature shall provide by law for the establish-
ment of a Board of Parole and the qualifications of its
members. Said board, or a majority thereof, shall have
power to grant paroles after conviction and judgment,
under such conditions as may be prescribed by law, for
any offenses committed against the criminal laws of

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this state except treason and cases of impeachment. 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 commuta-
tions in all cases of conviction for offenses against the
laws of the state, except treason and cases of impeach-
ment. The Board of Parole may advise the Governor,
Attorney General and Secretary of State on the merits of
any application for remission, respite, reprieve, pardon
or commutation but such advice shall not be binding on
them. The Governor shall have power to suspend the
execution of the sentence imposed for treason until the
case can be reported to the Legislature at its next ses-
sion, when the Legislature shall either grant a pardon, or
commute the sentence or direct the execution, or grant a
further reprieve.
Article VI, § 2, 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.”
Article VI, § 2, creates a right to reenfranchisement, but it is
not self-executing. The constitution creates a framework, and
the vacuum on the front end is filled in by statutes. The “legis-
lative forum” has been recognized as the mechanism to effectu-
ate constitutional provisions regarding reenfranchisement. See,
Richardson v. Ramirez, 418 U.S. 24, 55, 94 S. Ct. 2655, 41 L.
Ed. 2d 551 (1974); Hopkins v. Watkins, 108 F. 4th 371 (5th
Cir. 2024) (en banc). The Nebraska Constitution establishes
the elective franchise as a fundamental right of all qualified
voters and states that “there shall be no hindrance or impedi-
ment to the right of a qualified voter to exercise the elective
franchise.” Neb. Const. art. I, § 22. Article III, § 30, of the
Nebraska Constitution expressly directs that “[t]he Legislature
shall pass all laws necessary to carry into effect the provisions
of this constitution.”

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The members of the court who find L.B. 20 and L.B. 53
unconstitutional seem to recognize that the phrase “unless
restored to civil rights” in article VI, § 2, is written in the pas-
sive voice, but nevertheless they appear to conclude that the
restoration of each of the many civil rights that are restored,
e.g., serving as a juror, running for office, possessing a fire-
arm, and voting, is a partial pardon or a form of pardon that
can only be granted by the Board of Pardons. The Board of
Pardons sure will be busy. This view seems to have also identi-
fied reenfranchisement as a form of clemency, which may be
a first.
Because of the importance of voting, it is notable that the
drafters of the Nebraska Constitution deliberately devoted and
isolated a specific and entire section of the constitution to
restoration of voting and chose not to provide the mechanism.
See Neb. Const. art. VI, § 2. As discussed below, it was not
necessary to do so because statutes on the books complete
the thought. It is also notable that the drafters knew how to
explicitly limit certain rights’ restoration to the executive
branch, see Neb. Const. art. III, § 13, but chose not to do so
when it came to voting.
As I understand it, according to the members of the court
who find L.B. 20 and L.B. 53 unconstitutional, all reduc-
tions of legal consequences of felony convictions must be
done by the Board of Pardons without regard to statutes,
and it logically follows that all statutes that prescribe the
mechanism for restoration of rights, such as Neb. Rev. Stat.
§ 83-1,130 (Reissue 2014) pertaining to firearms, are there-
fore also unconstitutional. Cf. State v. Illig, 237 Neb. 598, 467
N.W.2d 375 (1991). See McCray v. Nebraska State Patrol,
271 Neb. 1, 710 N.W.2d 300 (2006). Under this view, for
example, the Legislature can increase criminal statutory pun-
ishments but only the executive Board of Pardons can reduce
the punishment. This view overlooks the subtleties of the
relationship between the Legislature and the executive branch
about which we have previously written. For example, in

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Johnson & Cunningham v. Exon, 199 Neb. 154, 256 N.W.2d
869 (1977), we upheld a statute, 1975 Neb. Laws, L.B.
567, which changed the allowance of good time credits,
both retroactively and prospectively, subject to ex post facto
consideration. We reasoned that the mathematical objective
formula for good time credits as defined by statute had been
earned and were not an individual act of discretion, otherwise
known as a pardon, which, of course, belongs to the Board of
Pardons. Similarly, the automatic restoration of voting rights
is not a pardon-light. A concurring justice in Exon described
the situation as follows: “There is no valid reason to conjure
up a spectre of unconstitutionality to deny to any prisoners
the benefits earned by their own good conduct . . . .” 199
Neb. at 161-62, 256 N.W.2d at 873 (McCown, J., concurring
in result). Applied to the instant case, there is no good reason
to conjure up a separation of powers argument to deny appli-
cation of a statute that requires no act of discretion or judg-
ment and would deny a nondiscretionary benefit that has been
earned. The Legislature made policy decisions reflected in the
terms of L.B. 20 and L.B. 53. Cf. Biddle v. Perovich, 274 U.S.
480, 47 S. Ct. 664, 71 L. Ed. 1161 (1927) (Justice Holmes
stating that granting of pardon is done with public welfare in
mind coupled with act of mercy).
Other than a glancing rejection of “‘partial pardon’” in
State v. Spady, 264 Neb. 99, 105, 645 N.W.2d 539, 543
(2002), until today, a “partial pardon” or a form of pardon
was not a thing in Nebraska jurisprudence. I do not agree with
the view that under the Nebraska Constitution, when adopted,
reenfranchisement of voting rights to felons who have com-
pleted their sentences was a “partial pardon” that belongs
to the Board of Pardons. Because, as noted, the constitution
does not specifically identify the mechanism for restoration
of voting rights in article VI, § 2, the members of the court
who find L.B. 20 and L.B. 53 unconstitutional reason that
if restoration of voting can be characterized as a species of
“pardon,” it will necessarily fit exclusively into the duties

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of the executive branch’s Board of Pardons listed in article
IV, § 13. To get there, one must characterize reenfranchise-
ment as a form of pardon and impose a contemporary view of
“partial pardon,” i.e., the elimination of a legal consequence
of conviction, on the concept of reenfranchisement. I do not
agree that restoration of voting rights was a pardon, much less
a partial pardon, at the time the Nebraska Constitution was
adopted, which, as I have said, is the relevant time period for
our analysis as to that which was intended in article VI, § 2,
when written.
To sort out the proper view of “partial pardon,” we should
look to the manner in which the term “partial pardon” was used
at the time period during which the Nebraska Constitution was
adopted in 1875. I do not believe restoration of voting rights
for felons was viewed as a partial pardon in 1875. Contrary
to the contemporary view of partial pardon, in the late 1800s
a partial pardon was primarily seen as a reduction of penal
consequences, but not other legal consequences. See Blount v.
Clarke, 291 Va. 198, 782 S.E.2d 152 (2016) (collecting cases
regarding history of pardons—full, absolute, conditional, or
partial—and commutations). The emphasis was on penal con-
sequences, such as reassignment from a chain gang to a work
farm. See id. In State ex rel. Attorney-General v. Peters, 43
Ohio St. 629, 650, 4 N.E. 81, 87 (1885), for example, it was
stated that “[a] pardon discharges the individual designated
from all or some specified penal consequences of his crime.
It may be full or partial, absolute or conditional.” (Emphasis
supplied.) Peters relied on a contemporaneous law dictionary,
“Bouvier’s Law Dict., title, Pardon; 1 Bishop’s Cr. Law (6th
ed.) sec. 914.” 43 Ohio St. at 650, 4 N.E. at 87. The view at
the relevant time period was that a partial pardon lessened the
punishment but did not encompass collateral disabilities, such
as loss of voting rights. Id. I believe we should not import
contemporary understanding of “partial pardon” and super-
impose it over the original understanding of the Nebraska
Constitution in 1875, which we are tasked with interpreting

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herein. For these reasons, I respectfully disagree with the view
that automatic restoration of voting rights is a “partial pardon”
or a form of pardon.
Under the view that L.B. 20 and L.B. 53 are unconstitu-
tional, in this area of the law, there is no harmony between
the legislative and executive functions of government. But in
the search for the answer to the question “who restores civil
rights?” that is, who executes the right in article VI, § 2, as I
have suggested above, the unconstitutional view discards the
context in which this constitutional provision was originally
drafted. Although the constitution is supreme, it is incomplete.
Both before and after creation of the Nebraska Constitution in
1875, statutory provisions implemented who restores certain
civil rights. Statutes written both before and after the adoption
of the constitution in 1875 answer the open question—who
restores voting rights—dangling in the passive voice in article
VI, § 2. As I have stated above, the constitution and statutes
should be read in harmony and provide for the potential of
overlapping authority over issues of amnesty. With this under-
standing, the Legislature can statutorily provide for restoration
of voting rights for felons.
In 1873, 2 years before the 1875 constitution, the Nebraska
statute, Gen. Stat. ch. 58, §§ 258 and 259, pp. 783-84 (1973),
provided:
Sec. 258. Any person sentenced to be punished for any
felony (when sentence shall not have been reversed or
annulled), shall be deemed incompetent to be an elector,
or juror, or to hold any office of honor, trust, or profit,
within this state, unless said convict shall receive from
the governor of this state a general pardon, under his
hand and the seal of the state, in which case said con-
vict shall be restored to his civil rights and privileges:
Provided, however, That such pardon shall not release
such convict from the costs of his conviction.
Sec. 259. Any person who shall have been actually
imprisoned in the penitentiary of any other state or

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territory of this Union, under sentence for the commis-
sion of any crime which, by the laws of this state, is
punishable by imprisonment in the penitentiary, shall
be deemed incompetent to be an elector or juror, or to
hold any office of honor, trust, or profit within this state,
unless said convict shall have received a general pardon
from the governor of the state in which he may have been
imprisoned, agreeably to the laws thereof.
A statute passed in 1875—the same year the constitution
was enacted—provided that the Governor “shall, upon receiv-
ing certificate of good conduct from the warden and inspectors,
immediately issue his warrant for discharge of such convict;
said warrant shall in all cases restore the prisoner to civil rights
the same as though a pardon had been issued.” 1875 Gen.
Laws, p. 33, § 3 (later codified as Rev. Stat. § 9234 (1913)).
To restore felons’ voting rights, the statutes surrounding the
adoption of the constitution contain a variety of mechanisms,
such as the warrant of discharge, the pardon, and the restora-
tion of civil rights, which were bestowed by a variety of enti-
ties, such as the Board of Pardons and the Governor. It cannot
be said that the restoration of voting rights was exclusively by
pardon granted by the Board of Pardons at that time.
In 1881, 6 years after the 1875 Constitution, the Nebraska
statute, Comp. Stat. ch. XXIV, §§ 258 and 259, p. 707 (1881),
provided:
Sec. 258. [Criminally disqualified as electors, etc.]—
Any person sentenced to be punished for any felony
(when sentence shall not have been reversed or annulled),
shall be deemed incompetent to be an elector or juror,
or to hold any office of honor, trust or profit within this
state, unless said convict shall receive from the governor
of this state a general pardon, under his hand and the seal
of the state, in which case said convict shall be restored
to his civil rights and privileges; Provided, however, That
such pardon shall not release such convict from the costs
of his conviction.

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Sec. 259. [Same.]—Any person who shall have been
actually imprisoned in the penitentiary of any other state
or territory of this union, under sentence for the com-
mission of any crime which, by the laws of this state, is
punishable by imprisonment in the penitentiary, shall be
deemed incompetent to be an elector or juror, or to hold
any office of honor, trust or profit within this state, unless
said convict shall have received a general pardon from the
governor of the state in which he may have been impris-
oned, agreeably to the laws thereof.
The statutes in effect in 1919 and 1922, after the constitutional
convention in 1919-20, are similar. See Rev. Stat. § 8912
(1913) and Comp. Stat. § 9934 (1922). As a further illustra-
tion of the interaction between the branches, more recently in
2002, the Legislature amended § 29-112 (Cum. Supp. 2002) to
require the Board of Pardons to clarify its issuance of warrants
of discharge. See 2002 Neb. Laws, L.B. 1054, § 3.
Pursuant to the foregoing statutes, which focus on the civil
right of voting, and working in concert with the text of the
constitutional provision that provides the framework for the
restoration of the voting civil right, we learn from the statute
that it was the Governor who was to restore the civil right
of voting in the 1880s. See, also, Turley v. State, 74 Neb.
471, 104 N.W. 934 (1905) (noting in 1905 that custom was
for order of discharge to restore all civil rights). For present
purposes, the important fact is that the constitution anticipates
that statute will assign the mechanism, and it matters not to
whom the task is assigned by statute. The 1875 constitution
did not provide either a defined or an exclusive mechanism
of the voter restoration right it created. If it had, the 1881
and subsequent statutory voter restoration provisions would
have been superfluous, and it logically follows that in the
view of those who find L.B. 20 and L.B. 53 unconstitutional,
150 years’ worth of statutes touching on voting rights are
unconstitutional.

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Relying on the text of article VI, § 2, I believe the imple-
mentation of the restoration of the civil right of voting created
thereby was not reserved exclusively to the executive branch
by the constitution, and statutes such as L.B. 20 and L.B. 53
do not intrude on the executive branch, nor violate the consti-
tutional separation of powers. The Legislature did not exceed
its authority when it passed L.B. 20 and L.B. 53, and I am not
fearful that other future statutes, which do not share the pecu-
liar language and exigencies of article VI, § 2, will encroach
on the power of the Board of Pardons. I would hold that, when
passed, L.B. 20 and L.B. 53 were constitutional, and therefore,
I agree with the result of the per curiam opinion that the writ
of mandamus should issue.
CONCLUSION
In just one case, the court has inflicted damage to Nebraska
procedure and threatens to do so as to substance in the future.
As to procedure: By expanding the unconstitutionality of a
statute as an available defense to mandamus actions, the court
enables an apparent scheme whereby the state actors’ challenge
to the felon reenfranchisement statutes, L.B. 20 and L.B. 53,
was permitted to be delayed until voting season and inevitably
caused voting disorder. The executive effort to nullify voting
rights legislation on the eve of an election is problematic. Just
barely, the objective of the apparent scheme was not achieved
and the true separation of powers story in this case is the
preservation of the judiciary’s power, including the power to
declare what statutes are unconstitutional. And as to the future,
the court has now invited all state employees to ignore the laws
they think are flawed and see if they get sued. The story is still
being written.
As to substance: The obvious issue in this case is a consti-
tutional challenge to L.B. 20 and L.B. 53, which restore vot-
ing rights to felons who have completed their sentences. The
challenge is based on a claim that the legislative branch has
encroached on the executive branch. As we have said, to prove

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a statute invalid, the challenge must overcome the presump-
tion of constitutionality and nullity and the invalidity of the
statute must be beyond a reasonable doubt such that the judge
feels a clear and strong conviction of the statute’s incompat-
ibility with the constitution. I have not been so convinced by
the respondents, nor has the struggling language of the opin-
ions finding L.B. 20 and L.B. 53 unconstitutional convinced
me otherwise.
Article VI, § 2, grants the right of reenfranchisement but
not the mechanism; it is not self-executing. For the reasons
explained above, including that statutes from immediately
before and after the Nebraska Constitution was adopted in
1875, and although a full pardon is the task of the Board
of Pardons located in the executive branch, the mechanism
of restoration of voting rights has always been a province
of the legislative forum. L.B. 20 and L.B. 53 represent the
policy decision of the Legislature, but others on the court have
concluded instead that restoration of voting rights belongs
exclusively to the Board of Pardons (composed of the elected
Governor, Attorney General, and Secretary of State), which
exercises its discretion as to who gets to vote. Under opinions
that would find L.B. 20 and L.B. 53 unconstitutional, the right
to vote of persons who registered to vote under L.B. 53 would
be effectively taken away. Rather than upholding separation of
powers, the respondents’ approach would consolidate power
in the executive branch and thereby diminish power in the
previously coequal legislative and judicial branches. Under the
view urged by the respondents and the members of the court
who would find L.B. 20 and L.B. 53 unconstitutional, the
elected officials would choose their voters instead of the other
way around.
Funke, J., dissenting.
I agree with my colleagues that there is no issue of jus-
ticiability here, because the parties’ joint stipulated facts
establish standing for the individual relators, Gregory Spung

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and Jeremy Jonak. I write separately in respectful dissent to
explain why I would find the reenfranchisement provisions of
2024 Neb. Laws, L.B. 20, are unconstitutional.
Before setting forth my reasons for taking this view, how-
ever, I would observe that all members of this court are cog-
nizant of the importance of the right to vote and the implica-
tions of our decision upon the potential ability of Nebraskans
to exercise that right. 1 However, the issue before us does not
hinge upon our views as to the merits of reenfranchisement.
Instead, it involves a question of constitutional interpretation.
“A constitution represents the supreme written will of the
people regarding the framework for their government.” 2 “The
meaning of the Constitution is fixed when it is adopted, and
it is not different at any subsequent time when a court has
occasion to pass upon it.” 3 Courts are not at liberty to con-
strue into the constitution new principles that did not exist at
the time of its adoption. 4 In other words, this court is bound
to uphold the Nebraska Constitution as adopted by our fel-
low Nebraskans.
CLAIM OF UNCONSTITUTIONALITY MAY BE
RAISED IN MANDAMUS PROCEEDING
The relators suggest that the court should issue a writ of
mandamus without evaluating the argument of the Nebraska
Secretary of State (Secretary) that L.B. 20 is unconstitu-
tional. In support of this argument, the relators argue that the
Secretary “has violated the separation-of-powers by usurping
1 See, e.g., Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb.
173, 188, 710 N.W.2d 609, 623 (2006) (“the fundamental right to vote in
this country is the right to participate in representative government”).
2 State ex rel. Johnson v. Gale, 273 Neb. 889, 896, 734 N.W.2d 290, 298
(2007).
3 First Trust. Co. v. Smith, 134 Neb. 84, 104, 277 N.W.2d 762, 777 (1938)
(citing 1 Thomas M. Cooley, A Treatise on the Constitutional Limitations
Which Rest Upon the Legislative Power of the States of the American
Union (8th ed. 1927)).
4 First Trust Co., supra note 3.

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the role of the judiciary and declaring the [reenfranchisement
statutes] unconstitutional.” 5 They contend that if the Secretary
concluded that the reenfranchisement statutes were unconsti-
tutional, he should have initiated a legal action to challenge
their constitutionality, rather than declining to implement them.
They assert that the Secretary “should not receive any benefit
from taking an unlawful shortcut.” 6
However, to the extent the relators argue that the Secretary
should not be permitted to assert the unconstitutionality of a
statute in a mandamus proceeding, long-established Nebraska
precedent is not on their side. More than a century ago, this
court was confronted with an argument much like the one
made by the relators here. In Van Horn v. State, 7 the relators
sought a writ of mandamus compelling county supervisors
to perform certain duties required by statute regarding town-
ship organization. The supervisors refused on the ground that
they believed the statute was unconstitutional. The relators
argued that mandamus should issue on the ground that min-
isterial officers like the county supervisors could not assert
that a statute that purports to impose a duty upon them is
unconstitutional.
This court rejected the relators’ argument in Van Horn.
With citation to Marbury v. Madison, 8 the court began by
observing that the “constitution is the supreme law, binding
upon the legislature, as well as upon every citizen, and that no
act of the legislature repugnant to the constitution can become
a law for any purpose.” 9 Given the primacy of the constitu-
tion, the court concluded that “[m]inisterial officers are . . .
not bound to obey an unconstitutional statute, and the courts
sworn to support the constitution will not by mandamus
5 Brief for relators at 26.
6 Id.
7 Van Horn v. State, 46 Neb. 62, 64 N.W. 365 (1895).
8 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).
9 Van Horn, supra note 7, 46 Neb. at 83, 64 N.W. at 372.

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compel them to do so.” 10 Instead, the court held that it is “a
complete answer to an application for [a writ of mandamus]
that the statute seeking to impose the duty is violative of the
constitution.” 11 To be sure, the court cautioned that a mere
doubt about the constitutionality of a statute would not justify
an officer in not following it and that officers who refuse to
follow statutes “disregard them at their peril.” 12 But the court
declared that “when they do disregard them, and the ques-
tion is presented to the court as to whether or not obedience
will be compelled, the question of the validity of the act is
presented, and obedience will not be compelled if the act is
unconstitutional.” 13
The relators argue it “drastically overreads Van Horn” to
conclude that it permits a respondent in a mandamus action
to raise the unconstitutionality of a statute as a defense. 14
They argue that much more recently, in State ex rel. Wright v.
Pepperl, 15 this court backed away from Van Horn. The rela-
tors also claim that permitting ministerial officers to raise the
unconstitutionality of statutes imposing a duty upon them in
mandamus actions conflicts with other principles of our law.
I would take a different view. First, Pepperl can be seen to
recede from the rule announced in Van Horn only if parts of
that opinion are read out of context. In Pepperl, this court did
hold that the respondent in that mandamus action, the state’s
Revisor of Statutes (Revisor), could not inject the constitu-
tionality of a statute into the mandamus action, because “the
power to declare an act of the Legislature unconstitutional
is a judicial power reserved solely to the courts and not to
10 Id. at 83, 64 N.W. at 372 (emphasis omitted).
11 Id.
12 Id.
13 Id.
14 Reply brief for relators at 14.
15 State ex rel. Wright v. Pepperl, 221 Neb. 664, 380 N.W.2d 259 (1986).

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any other public official.” 16 However, that statement was in
response to the Revisor’s reliance on a statute that recognized
an exception to the Revisor’s general duty to print and publish
laws enacted by the Legislature. That exception allowed the
Revisor to remove statutory language “which the Supreme
Court has held to be unconstitutional.” 17 When the Revisor
removed statutory language that this court had not yet found
unconstitutional and faced mandamus proceedings, this court
would not permit the Revisor to litigate the constitutionality of
that statutory language in the mandamus proceedings. But in
doing so, this court expressly found Van Horn did not apply,
because the duty at issue in Pepperl was the duty to print and
publish the laws passed by the Legislature, and the Revisor
did not contend that the statute imposing that duty was uncon-
stitutional. Here, in contrast, the Secretary is contending that
L.B. 20, the statute the relators contend imposes a duty, is
unconstitutional.
I also disagree with the relators’ contention that if Van
Horn means what it says, it cannot be squared with other legal
principles of law. Here, the relators invoke the provision of
the Nebraska Constitution providing that “[n]o legislative act
shall be held unconstitutional except by the concurrence of
five judges,” 18 as well as prior statements of this court that
an opinion of Nebraska’s Attorney General, although entitled
to “substantial weight” and respectful consideration, “has no
controlling authority on the state of law discussed in it, and
standing alone is not to be regarded as legal precedent or
authority of such character as is a judicial decision.” 19 The
relators argue that if the Secretary can raise the unconstitu-
tionality of the reenfranchisement statutes in this mandamus
16 Id. at 671, 380 N.W.2d at 264.
17 See Neb. Rev. Stat. § 49-705(2) (Reissue 1984).
18 Neb. Const. art. V, § 2.
19 State v. Coffman, 213 Neb. 560, 561, 330 N.W.2d 727, 728 (1983).

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proceeding, the constitution’s supermajority provision and our
observations regarding the status of opinions of the Attorney
General mean nothing. Again, I disagree.
The supermajority requirement of article V, § 2, imposes
a rule of decision for this court when it determines constitu-
tional questions. I do not understand it to speak to whether
other officers of the state may also assess the constitutionality
of statutes they are directed to follow. 20 As for the relators’
reliance on language regarding the weight to be afforded to
Attorney General opinions, that language merely recognizes
the settled principle that an opinion of the Attorney General is
not a judicial decision and does not have the same character
and effect as a judicial opinion.
Admittedly, Van Horn endorses what has been described
as a minority rule, 21 and its reasoning has been criticized. 22
However, whatever merits the criticisms of Van Horn may
generally have, I see no basis not to follow the Van Horn
rule here. Nebraska statutes provide that the Secretary “shall
decide disputed points of election law” and that such decisions
“shall have the force of law until changed by the courts.” 23 In
this case, the Secretary, in reliance on an opinion from the
Attorney General, resolved such a question of election law,
determining that the reenfranchisement statutes were uncon-
stitutional. Even some jurisdictions that generally do not
allow ministerial officers to raise the unconstitutionality of
a statute in a mandamus action have recognized an excep-
tion when a state officer relies on the opinion of a state’s
20 Cf. Freytag v. Commissioner, 501 U.S. 868, 906, 111 S. Ct. 2631, 115 L.
Ed. 2d 764 (1991) (Scalia, J., concurring; O’Connor, Kennedy, and Souter,
JJ., join) (recognizing President’s “power to veto encroaching laws . . . or
even to disregard them when they are unconstitutional).
21 See, e.g., Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055,
95 P.3d 459 (2004).
22 See, e.g., Barr v. Watts, 70 So. 2d 347 (Fla. 1953).
23 See Neb. Rev. Stat. § 32-201 (Reissue 2016).

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attorney general. 24 Furthermore, given that § 32-201 directs
the Secretary to “decide disputed points of election law” and
provides that such decisions, until changed by the courts,
“have the force of law,” I see no basis to prohibit the Secretary
from asserting the unconstitutionality of a statute in this man-
damus proceeding.
As to any suggestion that Pepperl and State v. Douglas
County (Lytle) 25 could be construed to mean that Nebraska
law previously did not allow parties to raise the constitution-
ality of statutes in original action mandamus proceedings,
Pepperl cannot be read to establish such a proposition. Neither
can Lytle.
In Lytle, a party filed an application for a writ of mandamus
on October 29, 1885, asking the court to compel an election
to be held less than 1 week later. We declined to reach the
constitutional question presented, stating that the “case was
submitted, practically without argument,” and that the court
could not “dispose of the case in this summary manner.” 26
The circumstances here are different. This case commenced
several months before an election, we expedited briefing and
argument, and the briefing and argument we received was
thorough and thoughtful. Oral arguments were held in late
August 2024, and a summary decision was not required.
Furthermore, this court cited Lytle in Van Horn, where we
distinguished it, not on the grounds that it was an original
action, but on the grounds that it was “submitted on the eve of
the election” and “practically without argument.” 27
Questions regarding the timing of the Secretary’s and the
Attorney General’s actions concerning the reenfranchisement
24 See, e.g., State ex rel. Equality Sav. & Bldg. Assn. v. Brown, 334 Mo. 781,
68 S.W.2d 55 (1934).
25 State v. Douglas County, 18 Neb. 506, 26 N.W. 315 (1886).
26 Id. at 507, 26 N.W. at 315.
27 Van Horn, supra note 7, 46 Neb. at 84, 64 N.W. at 372.

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statutes have also been raised. Even assuming the Secretary
or the Attorney General could have challenged those statutes
at some earlier time, I do not see the legal relevance. 28
CONSTITUTIONALITY OF L.B. 20
Turning next to the question of L.B. 20’s constitutional-
ity, everyone agrees that article VI, § 2, of the Nebraska
Constitution generally prohibits the individual relators from
voting. Everyone also agrees that notwithstanding that pro-
hibition, the individual relators would be eligible to vote if
“restored to civil rights.” The dispute arises over how one may
be “restored to civil rights.”
The Secretary argues that the individual relators can be
restored to civil rights only through the action of Nebraska’s
Board of Pardons. He also argues that one is “restored to
civil rights” for purposes of article VI, § 2, only if multiple
civil rights are restored. Because L.B. 20 purports to restore
the right to vote without action of the Board of Pardons and
without restoring other civil rights, the Secretary argues it is
unconstitutional.
The relators disagree. Although they agree with the Secretary
that civil rights can be restored by the Board of Pardons, they
disagree that only the Board of Pardons can restore civil
rights. They contend that the Legislature may constitutionally
restore civil rights and restore the right to vote independently
of other civil rights.
Ultimately, I would agree with the Secretary’s argument that
the Legislature lacks the power to restore the voting rights of
the individual relators. The Secretary’s argument is based on
several premises. First, the Secretary contends that an action
that restores a civil right is, in essence, an exercise of the
28 Cf. INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983)
(finding “legislative veto” to be unconstitutional, even though it had been
provided for in at least 56 statutes, some of which were enacted 30 years
earlier).

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pardon power. Second, he points out that the constitution gives
the power to grant pardons to the Board of Pardons. And,
finally, he submits that because the power to grant pardons
is given to the Board of Pardons and because an action that
restores civil rights is, in essence, an exercise of the pardon
power, the separation of powers clause of the constitution pro-
hibits the Legislature from exercising that power.
In determining that the restoration of civil rights is essen-
tially an exercise of the pardon power, I would look to what
a pardon is and does. From the era when the relevant consti-
tutional provisions were enacted and continuing through the
present, a consensus has existed as to the nature and effect of
a pardon. In 1866, in Ex parte Garland, 29 the U.S. Supreme
Court explained that a pardon “removes the penalties and dis-
abilities [of the offender’s conviction], and restores him to
all his civil rights.” In 1875, the U.S. Supreme Court wrote
that “[i]t is of the very essence of a pardon that it releases
the offender from the consequences of his offence.” 30 A con-
temporaneous criminal law treatise similarly stated that “[t]he
effect of a full pardon is to absolve the party from all the
consequences of his crime, and of his conviction, direct and
collateral; including the punishment, whether of imprisonment,
pecuniary penalty, or whatever else the law has provided.” 31
Pardons were thus understood to free the offender from any
punishment for a crime and to eliminate any other legal conse-
quences of the conviction, such as the loss of civil rights.
This understanding of pardons has persisted. In case after
case from Ex parte Garland to the present, this court and oth-
ers have understood full pardons to cut off punishment and
29 Ex parte Garland, 71 U.S. (4 Wall.) 333, 380, 18 L. Ed. 366, 371 (1866).
30 Osborn v. United States, 91 U.S. 474, 477, 23 L. Ed. 388, 389 (1875).
31 Joel Prentiss Bishop, Commentaries on the Criminal Law § 713 at 731 (2d
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eliminate other legal consequences of the conviction, such as
the loss of civil rights occasioned by the conviction. 32
Although 	restoration 	of 	voting 	rights 	alone 	would 	not
relieve an offender from punishment for his or her conviction,
it does not follow that an act restoring voting rights lacks the
defining features of a pardon. Pardons can be (and commonly
are) granted after the offender has completed the punishment
imposed for the crime. 33 Under those circumstances, pardons
do not relieve the offender of any punishment; they only
relieve the offender of other legal consequences arising as a
result of the conviction. 34 Accordingly, because many pardons
do not exempt the offender from punishment, one cannot rea-
sonably conclude that the pardon power has not been exercised
merely because an offender has not been spared from punish-
ment for the conviction.
Nor can one conclude that the pardon power has not been
exercised merely because only some legal consequences of a
conviction have been nullified. This is so because an act that
eliminates only some legal consequences of a conviction is
still a species of pardon—a partial pardon. Just as there was
and is a well-accepted understanding of what a full pardon is
and does, so too there was and is a well-accepted understand-
ing of partial pardons. Black’s Law Dictionary defines “par-
tial pardon” as a “pardon that exonerates the offender from
32 See, e.g., Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010),
abrogated on other grounds, Doe v. Board of Regents, 280 Neb. 492, 788
N.W.2d 264 (2010); U.S. v. Flynn, 507 F. Supp. 3d 116 (D.D.C. 2020);
U.S. v. McMichael, 358 F. Supp. 2d 644 (E.D. Mich. 2005); People ex rel.
Madigan v. Snyder, 208 Ill. 2d 457, 804 N.E.2d 546, 281 Ill. Dec. 581
(2004); Marsh v. Garwood, 65 So. 2d 15 (Fla. 1953); Slater v. Olson, 230
Iowa 1005, 299 N.W. 879 (1941); People v. Biggs, 9 Cal. 2d 508, 71 P.2d
214 (1937); Ex Parte Crisler, 159 Miss. 247, 132 So. 103 (1931).
33 See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the
Pardoning Power from the King, 69 Tex. L. Rev. 569 (1991).
34 See, e.g., Marsh, supra note 32. See, also, Hunnicutt v. State, 18 Tex. App.
498 (1885); State v. Blaisdell, 33 N.H. 388 (1856).

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some but not all of the punishment or legal consequences of
a crime.” 35 Many courts have recognized this definition of a
partial pardon. 36
A pardoning authority’s power to grant a partial pardon
flows from its authority to grant pardons. 37 The Nebraska
Legislature appeared to recognize that the Board of Pardons
had the power to grant partial pardons when it amended
§ 29-112 in 2002 to direct the Board of Pardons to “enumer-
ate[] or limit[]” the civil rights it was restoring in a warrant
of discharge. 38
In short, I would find that because partial pardons are a type
of pardon and because the restoration of voting rights elimi-
nates a legal consequence of a conviction, the restoration of
voting rights has the defining features of pardon.
I would also find that insofar as an act restoring civil
rights has a defining feature of a pardon, and the Nebraska
Constitution grants the power to issue pardons to the Board of
Pardons, the right to vote of those convicted of felonies under
Nebraska law cannot be restored automatically by statute, but
instead must be restored through the Board of Pardons. It is
here that the express separation of powers provision found in
article II, § 1, of the Nebraska Constitution becomes relevant.
That section provides in relevant part that “no person or collec-
tion 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.”
35 Black’s Law Dictionary 1336 (12th ed. 2024).
36 See, People ex rel. Madigan, supra note 32; Anderson v. Com., 107
S.W.3d 193 (Ky. 2003). See, also, United States v. Barrett, 504 F.2d 629
(6th Cir. 1974); P. H. Warren v. The State, 127 Tex. Crim. 71, 74 S.W.2d
1006 (Tex. Crim. App. 1934).
37 See, e.g., Anderson, supra note 36; State v. Hildebrand, 25 N.J. Super. 82,
95 A.2d 488 (1953); In re Cummins, 20 Haw. 518 (1911); Lee v. Murphy,
63 Va. (22 Gratt.) 789 (1872).
38 2002 Neb. Laws, L.B. 1054, §§ 3 and 4.

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In several cases, we have held that legislation that authorizes
another branch to exercise a power granted to the Board of
Pardons violates article II, § 1. In State v. Philipps, 39 the State
challenged the constitutionality of a statute permitting those
serving a sentence for a conviction to petition the court for a
reduced sentence after the sentence was imposed. We held that
the statute was unconstitutional because it allowed the judi-
ciary to exercise the power of commutation.
The offender in Philipps pointed to cases from other juris-
dictions in which courts held that the judicial reduction of a
sentence was distinct from the power of pardon or commuta-
tion. However, we declined to rely on those cases because they
engaged in circular reasoning. As we explained, “[D]etermin-
ing whether an act is one of commutation on the basis of who
performs it begs the question.” 40 Instead, we concluded that the
statute violated the separation of powers because “the essence
of commutation is the substitution of a milder punishment,” 41
and the statute allowed the courts to substitute a milder pun-
ishment. We relied on the same reasoning in State v. Jones 42
and State v. Bainbridge 43 to hold that other statutes permitting
courts to substitute milder punishments for the sentence ini-
tially imposed were unconstitutional.
Applying these cases here, I would find that L.B. 20 runs
afoul of the separation of powers provision because it “does
the very thing which defines” one of the actions the Board of
Pardons is empowered to take by article IV, § 13. 44 It purports
to restore offenders’ rights to vote that they have lost as a result
of a felony conviction.
39 State v. Philipps, 246 Neb. 610, 521 N.W.2d 913 (1994).
40 Id. at 615, 521 N.W.2d at 916.
41 Id. at 615, 521 N.W.2d at 916-17.
42 State v. Jones, 248 Neb. 117, 532 N.W.2d 293 (1995).
43 State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996).
44 Philipps, supra note 39, 246 Neb. at 616, 521 N.W.2d at 917.

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The relators do not dispute that the Board of Pardons
has the power to restore voting rights through the pardon
power. In their view, however, both the Board of Pardons
and the Legislature can restore voting rights. Several reasons
are offered for this, but I am not persuaded that the power to
restore voting rights overlaps in this way.
One argument raised in favor of the relators’ position is
that although article VI, § 2, provides for the possible restora-
tion of voter rights of those convicted of felonies, it does not
specify who may restore those rights. It is further contended
that there is an absence of evidence that article VI, § 2, was
originally understood to permit the restoration of civil rights
only through the pardoning authority. Respectfully, I do not
believe such analysis considers the entirety of the Secretary’s
argument. The fact that article VI, § 2, does not identify who
may restore voter rights does not, in and of itself, mean there
is no constitutional problem. Any restoration of voter rights
contemplated by article VI, § 2, must comply with other con-
stitutional provisions, including the article II, § 1, prohibition
on one branch exercising powers that have been granted to
another. 45 And, for reasons explained above, I would find that
L.B. 20 violates that prohibition.
For similar reasons, I am unpersuaded by the argument
that article VI, § 2, is not self-executing, and the Legislature
is thus free to pass legislation to bring that constitutional
provision into effect. I question the conclusion that article
VI, § 2, is not self-executing. We have previously said that
“‘[c]onstitutional provisions are self-executing when there is
a manifest intention that they should go into immediate effect,
and no ancillary legislation is necessary to the enjoyment of a
right given, or the enforcement of a duty imposed.’” 46 Given
45 See State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024) (Papik, J.,
dissenting; Funke and Freudenberg, JJ., join).
46 Wilfong v. Omaha & C. B. Street R. Co., 129 Neb. 600, 608, 262 N.W.2d
537, 541 (1935).

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the recognition that pardons restore the civil rights of the
recipient, a gubernatorial pardon in 1875 would have had the
effect of restoring the voting rights of an individual convicted
of a felony even absent legislation so providing. Legislation
was thus not necessary for article VI, § 2, to go into effect.
Moreover, even when a constitutional provision is not self-
executing, the Legislature cannot pass legislation that violates
another constitutional provision. 47 And for the reasons set
forth above, it is my view that L.B. 20 violates the separation
of powers provision set forth in article II, § 1.
To 	be 	sure, 	there 	is 	one 	constitutional 	provision 	that
expressly authorizes the Legislature to do some things in
the clemency arena. Specifically, article IV, § 13, expressly
provides a role for the Legislature in setting conditions under
which parole may be granted and in issuing pardons for con-
victions for treason. However, we have previously explained
that the “conditions clause” of article IV, § 13, only permits
the Legislature to place conditions on when a committed
offender is eligible for parole. 48 But “once eligible for parole,
the Board [of Parole] alone has authority to grant parole—the
Legislature has no power over the decision whether to grant
release on parole.” 49
The history of statutes regarding civil rights restoration
also does not persuade me that the Legislature may constitu-
tionally restore voting rights of those convicted of felonies.
For a number of years, Nebraska statutes provided that vot-
ing rights of those convicted of felonies could be restored
only through the pardoning authority. Although such statutes
may have declared what was already the law, they do not, in
my view, demonstrate an understanding that the Legislature
could unilaterally restore civil rights. It is true that, decades
after the Nebraska Constitution was adopted, the Legislature
47 See Peterson v. Hancock, 155 Neb. 801, 54 N.W.2d 85 (1952).
48 Adams v. State, 293 Neb. 612, 619, 879 N.W.2d 18, 23 (2016).
49 Id.

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enacted statutes concerning restoration of the right to vote
that appear to be inconsistent with the view that the Board of
Pardons has the exclusive authority to restore voting rights.
However, those statutes shed little light on the question
before us. On the one hand, the statutes seem to recognize
that the clemency powers of the Board of Pardons include the
power to restore voting rights. But to the extent those statutes
attempted to require the Board of Pardons to grant or deny
clemency, they too appear to have been unconstitutional. 50
I also disagree with any suggestion that the separation of
powers analysis in this case could be resolved by application
of a four-part balancing test we have occasionally used to
determine whether, in a situation in which branches of govern-
ment have “overlapping” powers, one branch is “significantly
impair[ing] the ability of any other in its performance of its
essential functions.” 51 This is not a case in which the Secretary
is contending that the Legislature is merely impairing the
Board of Pardons’ functions. Rather, the Secretary contends
that the Legislature has exercised a power given to the Board
of Pardons. In that scenario, article II, § 1, does not contem-
plate balancing. It prohibits one branch from exercising the
powers of another unless the constitution expressly permits or
directs the exercise of that power.
Consistent 	with 	that 	understanding, 	our 	decisions 	in
Bainbridge, 52 Jones, 53 and Philipps 54 did not use a balancing
test to determine whether the Legislature’s passage of statutes
authorizing the judicial branch to substitute milder punish-
ment for that initially imposed impaired the function of the
Board of Pardons; the fact that the statutes at issue authorized
50 See, e.g., State v. Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014).
51 State ex rel. Veskrna v. Steel, 296 Neb. 581, 598, 894 N.W.2d 788, 800
(2017).
52 Bainbridge, supra note 43.
53 Jones, supra note 42.
54 Philipps, supra note 39.

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the judiciary to do “the very thing which defines an act of
commutation” was sufficient to find unconstitutionality. 55
The relators also contend that the Secretary’s constitutional
argument is squarely foreclosed by one sentence in Ways v.
Shively. 56 In Ways, a person who had been convicted of a
felony and had completed his sentence sought a writ of man-
damus compelling an election commissioner to permit him to
register to vote. We noted that under article VI, § 2, the peti-
tioner had lost his right to vote. We then stated that “[r]estora-
tion of the right to vote is implemented through statute.” 57 The
relators point to this language and assert that it conclusively
establishes that the Legislature may restore felons’ voting
rights via statute. A closer read of Ways reveals otherwise.
At the time Ways was decided, § 29-112 (Reissue 1995)
provided that persons convicted of felonies could not vote
unless and until they received a warrant of discharge from the
Board of Pardons. The petitioner in Ways had not received
a warrant of discharge from the Board of Pardons, but had
received a certificate of discharge from the corrections depart-
ment after he completed his sentence. The petitioner argued
that he was entitled to register to vote because other statu-
tory language in effect at the time directed that a certificate
of discharge “shall restore the civil rights of the offender.” 58
We applied the familiar rule that when statutes are in conflict,
the more specific statute controls the more general, and found
that § 29-112 was the more specific statute. Thus, our decision
in Ways did not determine that the Legislature could consti-
tutionally provide for the automatic restoration of a felon’s
right to vote. At that time, the Legislature had not yet passed
a statute providing for automatic restoration. I understand
55 Id. at 616, 521 N.W.2d at 917. See, also, State v. Stephens, 663 S.W.3d 45
(Tex. Crim. App. 2021).
56 Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002).
57 Id. at 255, 646 N.W.2d at 626.
58 Neb. Rev. Stat. § 83-1,118(5) (Reissue 1999).

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the language in Ways to recognize the existence of a statute
addressing restoration of the right to vote, not to assess the
constitutionality of an as-yet-to-be-enacted statute.
The relators similarly argue that this case is controlled by
State v. Spady, 59 another decision we issued the same year
as Ways. In Spady, an individual who had successfully com-
pleted a term of probation for a misdemeanor conviction
petitioned the county court under Neb. Rev. Stat. § 29-2264
(Cum. Supp. 2000) for an order setting aside the conviction.
The county court denied the petition, finding that § 29-2264
was unconstitutional. The district court affirmed, finding that
§ 29-2264 authorized the judiciary to issue a “pardon or a ‘par-
tial pardon.’” 60 The petitioner appealed.
On appeal, we considered in Spady whether the relief sought
amounted to a pardon or partial pardon. We cited cases from
this court and others, as well as Black’s Law Dictionary, all of
which generally recognized that a pardon is an act relieving
an offender from punishment or other legal consequences of
a crime. We then concluded that the setting aside of a convic-
tion under the statute did not amount to a pardon. We noted
that successful petitioners under the statute are not “exempted
from punishment” and that the relief was available only for
those “placed on probation or . . . sentenced to a fine only.” 61
We also observed that, under the statute, even if a conviction
was set aside, it could still be used for some purposes and
thus the setting aside of a conviction did “not nullify all of
the legal consequences of the crime committed because cer-
tain civil disabilities enumerated above are not restored, as
occurs when a pardon is granted.” 62 As for the district court’s
conclusion that the setting aside of the conviction amounted to
59 State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002).
60 Id. at 101, 264 Neb. at 541.
61 Id. at 104, 645 N.W.2d at 543.
62 Id. at 105, 645 N.W.2d at 543.

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a partial pardon, we disagreed, stating only that “certain civil
disabilities are exempted from restoration.” 63
The relators argue that Spady stands for the proposition that
the legislative and judicial branches may nullify legal conse-
quences arising as a result of a criminal conviction so long as
they do not spare the offender from punishment or nullify all
the legal consequences of a crime. To the extent Spady can be
so read, it is untenable. First, as I explained above, because
pardons are often granted after the offender has completed the
punishment imposed for the crime, many pardons do not spare
the offender from any punishment.
Moreover, to the extent Spady can be read to say that the
legislative and judicial branches do not usurp the pardon
power so long as their actions nullify only some legal conse-
quences of a conviction, that conclusion also cannot withstand
scrutiny. The opinion in Spady stated that the setting aside
of a conviction under § 29-2264 did not amount to a partial
pardon because “certain civil disabilities are exempted from
restoration.” 64 But, as I have discussed in this opinion, a partial
pardon is just that—an act that spares the offender from just
some of the legal consequences of a crime.
Perhaps the result in Spady can be defended on the grounds
that the civil disabilities § 29-2264 nullifies were imposed by
the Legislature, and thus, the Legislature retained the power
to nullify them or allow the judiciary to do so. However, even
assuming this were the case, that would be of no assistance
to the relators here because the disqualification of individuals
convicted of felonies from voting arises from the constitution,
and not from a statute.
The 	relators 	further 	rely 	on 	authority 	from 	outside 	of
Nebraska. They contend that in many states, statutes provide
for the automatic restoration of voting rights for those con-
victed of felonies, while executive officials retain the authority
63 Id. at 105, 645 N.W.2d at 544.
64 Id.

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to also restore voting and other rights through the power to
pardon. However, the relators have not directed us to a case in
one of those states in which a court rejected an argument like
the Secretary makes here.
In fact, authority in one of the other states that the relators
invoke supports the Secretary’s position. The relators identify
Florida as a state in which a statute provides that the voting
rights of those convicted of some felonies are restored upon
completion of their sentences. Such a statute does exist, 65 but
it expressly refers to a provision in the Florida Constitution
that provides that, for certain felony offenses, voting rights are
restored upon completion of the offender’s sentence. 66
Not only is there an express provision in the Florida
Constitution providing for automatic restoration of voting
rights upon completion of a sentence for some felonies, but
this provision came into being as a result of the Florida
Supreme Court’s determination that a prior statute providing
for automatic restoration of voting rights was unconstitu-
tional. 67 The Florida Supreme Court concluded that because
the Florida Constitution granted to executive branch officials
the power to pardon and restore civil rights, the Legislature
could not constitutionally restore felons’ right to vote. 68 And
although the Florida Constitution provided that the pardoning
authorities had the power to both “grant full or conditional
pardons” and “restore civil rights,” 69 the Florida Supreme
Court decision is nonetheless instructive in this case. Although
the Nebraska Constitution does not include an express provi-
sion authorizing the Board of Pardons to restore civil rights, it
does authorize the Board of Pardons to issue pardons, and, as
65 See Fla. Stat. Annot. § 98.0751 (West Cum. Supp. 2024).
66 See Fla. Const. art. VI, § 4.
67 See In re Advisory Opinion of Governor Civil Rights, 306 So. 2d 520 (Fla.
1975).
68 Id.
69 Fla. Const. art. IV, § 8.

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discussed, it is a defining feature of a pardon that it restores
civil rights of the pardoned individual.
My reasoning is, thus, very similar to that of the Florida
Supreme Court. To summarize, by giving the power to grant
pardons to the Board of Pardons, the Nebraska Constitution
granted to the Board of Pardons the power to eliminate legal
consequences of convictions and, more specifically, the power
to restore felons’ right to vote. Because the constitution grants
this power to the Board of Pardons, I would find that the
separation of powers prohibits the Legislature from exercising
the same power in the absence of a constitutional provision
expressly directing or permitting the Legislature to do so.
Freudenberg, J., dissenting.
I respectfully dissent from the various majority positions
that, collectively, resulted in the granting of a writ of man-
damus in this matter. This is the second time in this court’s
very recent history that it has failed to protect the Nebraska
Constitution’s separation of powers. Specifically, it is the sec-
ond time we have permitted the Legislature to create processes
that improperly allow other branches of government to exercise
the executive branch’s exclusive power to pardon. The first
instance was this court’s decision in State v. Gnewuch, 316
Neb. 47, 3 N.W.3d 295 (2024), in which I also dissented. I
reaffirm my reasoning stated therein without repeating it here.
In that matter, as here, I strongly disagree with the control-
ling opinions.
In the present matter, the legislative branch, through 2024
Neb. Laws, L.B. 20, requires that convicted felons’ constitu-
tionally removed voting rights be automatically returned at the
conclusion of their judicially imposed sanctions. The merit of
such a policy decision is not a matter entrusted to this court to
review, and I do not comment on it. However, it is our duty to
ensure compliance with the Nebraska Constitution. The wide
range of controlling positions fail to do so.

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To properly proceed, we must first examine the relevant
constitutional provisions. Neb. Const. art. II, § 1(1), divides
the powers of government in Nebraska into the three distinct
departments of the legislative, executive, and judicial branches
and clearly mandates that “no person or collection of per-
sons 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.”
Neb. Const. art. IV, § 13, establishes that the power of the
pardon rests with the Board of Pardons, consisting of three
executive branch members—the Governor, Attorney General,
and Secretary of State. The Board of Pardons is granted the
power to pardon any “offenses against the laws of the state,
except treason and cases of impeachment.” Id. The same
article expressly grants the Legislature the power to pardon a
sentence imposed for treason in situations where the Governor
has suspended the execution of the sentence and sent the mat-
ter to the Legislature to address; however, such situation has
no relevance to this analysis except to point out that this is
the only provision where either the Legislature or the judi-
ciary is expressly granted the power to pardon in the Nebraska
Constitution. Therefore, the legislative and judicial branches
are constitutionally precluded from otherwise exercising the
power of the pardon.
I disagree with the suggestion in the controlling opinions
that the relevant constitutional articles are ambiguous and in
need of interpretation through the use of external sources to
determine the meaning of the constitutionally established proc-
ess for the restoration of extinguished voting rights. Further,
the term “pardon” is clear and unambiguous and therefore
requires no extensive discussion. Black’s Law Dictionary 1336
(12th ed. 2024) defines a “pardon” as an act of “officially nul-
lifying punishment or other legal consequences of a crime.”
There is no question that the constitutionally mandated loss
of the right to vote is a legal consequence of being convicted
of crimes under which a person becomes a convicted felon.

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Neb. Const. art. VI, § 2, establishes that “[n]o person shall be
qualified to vote . . . who has been convicted of treason or fel-
ony under the laws of the state or of the United States, unless
restored to civil rights.” Nullifying the legal consequence of
committing a crime by restoring those civil rights is, by defini-
tion, a pardon.
Through L.B. 20, the Legislature has usurped the executive
branch’s exclusive pardoning power by restoring convicted
felons’ voting rights upon the completion of their judicially
imposed sentence. If the Legislature had wished to properly
pursue a policy such as that established by L.B. 20, it should
have initiated the referendum process to amend article VI of
the Nebraska Constitution as other states have done. See, In
re Advisory Opinion of Governor Civil Rights, 306 So. 2d 520
(Fla. 1975); Fla. Stat. Annot. § 98.0751 (West Cum. Supp.
2024); Fla. Const. art. VI, § 4. The difficulties inherent in such
a process do not excuse the Legislature’s violation of the sepa-
ration of powers mandate of the Nebraska Constitution, nor
does it excuse the controlling positions, collectively, uphold-
ing L.B. 20.
The majority positions include: unnecessarily complex and
significantly strained interpretations of historical statutes and
cases to impose a flawed analysis to an otherwise unambiguous
constitutional process; unsubstantiated allegations of political
misconduct upon elected officials of the executive branch for
attempting to uphold their oaths to the Nebraska Constitution;
and a claim that 1½ months was an insufficient amount of time
for the court to consider this matter, and we should, therefore,
simply decline to resolve the issue at this time.
The majority positions dangerously allow the Legislature
to amend the Nebraska Constitution by legislative act without
requiring it to follow the constitutional amendment process.
This abuse should not be condoned, let alone sanctioned,
by this court. Further, there are no limiting factors con-
tained in any of the majority positions that would prevent the
Legislature from passing legislation in the future to restore

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convicted felons’ voting rights immediately upon conviction,
thereby completely negating the existence of Neb. Const. art.
VI, § 2.
I unfortunately find myself again dissenting in a case where
this court is empowering the Legislature to exercise the pardon
power exclusively granted by our constitution to the execu-
tive branch. I believe that our duty to protect and preserve the
separation of powers mandated by the Nebraska Constitution
demands better.