Divided Iowa Supreme Court upholds felon voting ban; key points and political reaction

The Iowa Supreme Court has rejected a lawsuit challenging state policy on disenfranchising all felons. Four justices found “insufficient evidence to overcome the 1994 legislative judgment” defining all felonies as “infamous crimes,” which under our state’s constitution lead to a lifetime ban on the right to vote or run for office. Chief Justice Mark Cady wrote the majority ruling, joined by Justices Bruce Zager, Edward Mansfield, and Thomas Waterman. They affirmed a district court ruling, which held that having committed a felony, Kelli Jo Griffin lost her voting rights under Iowa law.

Justices Brent Appel, Daryl Hecht, and David Wiggins wrote separate dissenting opinions, each joined by the other dissenters. I enclose below excerpts from all the opinions, along with early political reaction to the majority ruling and a statement from Griffin herself.

The American Civil Liberties Union of Iowa filed the lawsuit on behalf of Griffin in November 2014, seven months after an Iowa Supreme Court plurality had stated, “It will be prudent for us to develop a more precise test that distinguishes between felony crimes and infamous crimes” that disqualify Iowans from voting.

Three of the six justices who participated in that 2014 case decided Griffin v. Pate differently. In Chiodo v. Section 43.24 Panel, Cady wrote and Zager joined the plurality opinion, which left open the possibility that not all felonies rise to the level of infamous crimes. Wiggins dissented from the Chiodo plurality, saying the court should not rewrite “nearly one hundred years of caselaw” to “swim into dangerous and uncharted waters.”

All credit to Ryan Koopmans for pointing out in March that given how quickly the court had decided Chiodo, “Having had more than a couple days to think about it, some of the justices could easily change their mind.” The justices were on a compressed schedule in Chiodo because of the need to print ballots in time for the early voting period starting 40 days before the 2014 Democratic primary. Ned Chiodo was challenging the eligibility of Tony Bisignano, a rival candidate in Iowa Senate district 17.

Side note before I get to the key points from today’s decisions: An enormous opportunity was missed when the state legislature did not revise the 1994 law defining infamous crimes between 2007 and 2010, when Democrats controlled the Iowa House and Senate and Chet Culver was governor. The issue did not seem particularly salient then, because Governor Tom Vilsack’s 2005 executive order had created a process for automatically restoring the voting rights of most felons who had completed their sentences.

But Governor Terry Branstad rescinded Vilsack’s order on his first day back in office in January 2011. During the first five years after Branstad’s executive order, fewer than 100 people (two-tenths of 1 percent of those who had been disenfranchised) successfully navigated the process for regaining voting rights. I consider the policy an unofficial poll tax, because getting your rights back requires an investment of time and resources that most ex-felons do not have. Today’s majority decision leaves this policy in effect, with a massively disproportionate impact on racial minorities.

The Iowa Supreme Court’s opinions in Griffin v. Pate are available here (pdf). Cady’s decision for the majority runs from pages 3 through 44. He gets to the heart of the matter in the second paragraph:

The term “infamous crime” was generally recognized to include felony crimes at the time our constitution was adopted. This meaning has not sufficiently changed or evolved to give rise to a different meaning today. In addition, unlike some past cases when we have interpreted provisions of our constitution, the facts and evidence of this case are insufficient to justify judicial recognition of a different meaning. Constrained, as we must be, by our role in government, we conclude our constitution permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship. This conclusion is not to say the infamous-crime provision of our constitution would not accommodate a different meaning in the future. A different meaning, however, is not for us to determine in this case. A new definition will be up to the future evolution of our understanding of voter disqualification as a society, revealed through the voices of our democracy.

Mansfield and Waterman were clearly inclined toward this view, based on their stance in the Chiodo case and their comments during the March 30 oral arguments in Griffin. Zager said nothing during that hearing, making it impossible to discern his take on the current case. I’m surprised Cady ended up in this camp, because in some high-profile cases (for example, related to juvenile sentencing) he has been willing to be more “activist” than Mansfield, Waterman, and Zager. Cady also wrote the court’s 2009 opinion in Varnum v Brien, which interpreted the Iowa Constitution to prohibit a ban on same-sex marriages.

Back to the Griffin ruling. On page 6, the majority states clearly that it is up to the Iowa Supreme Court, not the state legislature, to define “infamous crime” under the constitution.

The sole issue in this case is whether the felony crime of delivery of a controlled substance [for which Griffin was convicted] is an infamous crime. Under our system of governing, this issue is now a question for this court to decide. The legislature enacted a statute in 1994 defining an infamous crime as any felony. 1994 Iowa Acts ch. 1180, § 1 (codified at Iowa Code § 39.3(8) (2013)).2 Yet under our democracy, people have the right to challenge the constitutionality of a legislative enactment that directly affects them, and the judicial branch of government has the responsibility to decide the question. In Iowa, that responsibility ultimately falls to this court.

On pages 7 and 8, the majority acknowledges that understandings of constitutional terms can evolve. In other words, the court does not have to consider all felonies infamous, just because that was the prevailing opinion in the 1850s, when Iowa adopted its current constitution.

In Chiodo, we recognized we had never developed a comprehensive analysis to determine the meaning of the infamous-crime disqualification. 846 N.W.2d at 851. It was unnecessary at that time, however, to conduct the in-depth analysis needed to articulate such a standard.3 The crime claimed to be infamous in Chiodo was a misdemeanor, and we were able to resolve the dispute under a standard that only went so far as to exclude misdemeanor crimes from the meaning of infamous crimes. […]

In taking the next step forward today to develop a more complete framework to interpret the infamous-crime language, we are drawn to the approach historically taken by courts when called upon to interpret the meaning of constitutional phrases that necessarily embody social judgments that evolve over time. This approach has allowed courts, for example, to usher the “cruel and unusual punishment” clause from generation to generation as views of punishment evolve. […]

Like the cruel and unusual punishment clause, the concept of infamy is not locked into a past meaning, but embodies those judgments that reflect its meaning today. Our founders utilized infamy as a concept to govern the disqualification of voters and knew it would ultimately be defined by the prevailing standards of each generation. Community standards exist to shape these constitutional principles until they evolve into a new standard or it is determined they are no longer supported by our evolving knowledge and understanding. This approach reveals the enduring strength of our constitution.

The next section of the ruling examines historical definitions of infamous crimes, starting with common law in ancient Greece and Rome and continuing to centuries-old European standards and understandings in the U.S. during the 19th century. Muscatine County Attorney Alan Ostergren’s amicus curiae brief on behalf of the Iowa County Attorneys Association covered much of the same ground. I didn’t care for the tone of Ostergren’s brief or his remarks during the oral arguments, but he gets the last laugh today, as his historical analysis influenced a majority on the high court.

A discussion of Iowa constitutional, legislative, judicial, and executive understandings of “infamy” throughout history runs from page 14 through 31. Early Iowa Supreme Court rulings on the matter related to whether committing an infamous crime made a citizen ineligible to be a witness in court. The 1916 Blodgett v. Clarke case was the first time the Iowa Supreme Court “addressed the concept of infamous crimes in the context of qualified electors.” Ruling “an infamous crime was any crime punishable by imprisonment in the penitentiary,” the court “engaged in no independent analysis and effectively made felonies and infamous crimes synonymous under Iowa law.” (page 20) A 1929 ruling “strongly implied a distinction between infamous crime and felony,” but “the nature of that distinction remained unsaid.” (page 21)

Analysis of the 2014 Chiodo case commences on page 22.

For the first time, we engaged in a comprehensive review of our law on infamous crime. See Chiodo, 846 N.W.2d at 848–56. In doing so, we discovered that our prior cases never engaged in a textual analysis of the meaning of infamous crime in article II, section 5 of our constitution. See id. at 849–51. The plurality opinion rejected the Blodgett standard that broadly defined infamous crimes as any crime punishable by imprisonment in the state penitentiary. Id. at 852. It also rejected the notion of infamy as a criminal punishment and concluded that our founders viewed the concept more as a regulatory measure intended to “preserve the integrity of the process of voting” and to protect the process from those “infected by an infamous disposition.” Id. at 855. Although we identified various tests used in other states to determine if a crime was infamous—affront to democratic governance, the common law definition, or crimes of great moral turpitude—we declined to adopt any of them at that time. Id. at 856. Instead, we only utilized two criteria: the crime “must be classified as particularly serious” and “must … reveal[] that voters who commit the crime would tend to undermine the process of democratic governance through elections.” Id. We held that to meet the first criterion, a particularly serious nature, the crime must be a felony, not a misdemeanor. Id. at 856–57.

The historical section wraps up on page 30 and 31 with the following passage:

Overall, we left the concept of infamy behind in the context of disqualifying a witness from testifying.14 More recently, we ceased to use it to disqualify jurors. Yet these divergent paths did not change the definition of infamous crime in the context of voter disqualification, and they do not undermine our analytical model of relying on community standards of today to define an infamous crime. Prevailing community standards remain important in defining infamous crimes, whether those standards might serve to exclude some felony crimes from the definition or include all felony crimes. Community standards are properly used to define constitutional doctrine unless constitutional facts exist that reveal the standards are contrary to the intent and purpose of the constitutional doctrine.

Although the legislature does not have the power to define terms in the constitution, Cady writes for the majority, legislative intent is important for the high court to consider (pages 31 and 32).

[I]n 1994, our legislature took the concrete step to expound a bright-line standard that infamous crime embraces all felonies. […]

Under our analytical model, these legislative pronouncements are important considerations for us today. Statutes do not serve as constitutional definitions but provide us the most reliable indicator of community standards to gauge the evolving views of society important to our analysis. […] These views are particularly invaluable in interpreting the infamous-crime clause in Iowa. […]

The judgment expressed by the legislature in 1994 has additional importance in this case in light of the absence of other legislative or judicial expressions in our state’s history.

The court did not consider the constitutionality of the process Governor Terry Branstad created for restoring voting rights (page 43):

Griffin’s remaining challenges to the statutes and regulations governing voting and the restoration process were dependent on a finding that her conviction did not qualify as an infamous crime. Since we conclude that infamous crime under the constitution means felony crime, we need not address these issues.

For my money, the most questionable passage in the majority opinion is on page 33:

Moreover, the definition is not out of line with the national view of infamy in the context of voter disqualification. Certainly, no national consensus has developed to define infamous crime either more broadly or more narrowly than our legislature.

Iowa’s current policy is out of step with national consensus. Most states allow at least some felons to vote after completing their prison sentences, and eight states disqualify people from voting only for certain felonies, not all felonies.

The next section discusses relevant Supreme Court rulings from other states. Some have held that all felonies are infamous crimes, while others have drawn a more narrow definition, such as the “affront to democratic governance” standard the ACLU was seeking in Griffin’s appeal.

The Chiodo plurality ruling hinted that the Iowa Supreme Court justices might be receptive to redefining infamous crimes as those that affect the integrity of elections. However, the Griffin majority was unpersuaded (pages 38 and 39):

Notwithstanding, no objective evidence exists that the founders of our Iowa Constitution adopted or intended to adopt a concept of infamy restricted to those crimes that undermine the integrity of the election process or any comparable standard, or that our state evolved to embrace such a standard at any time in our history. In Chiodo, we indicated infamous crime as a disqualification from voting was a means to avoid undermining the integrity of elections. 846 N.W.2d at 855–56. This observation did not establish a standard, but identified a broad rationale for the constitutional provision. See id. A standard must still exist, and a standard based on felonies is not necessarily inconsistent with the rationale of upholding the integrity of elections. The bottom line is that throughout history the concept of infamous crime may have included crimes in addition to felonies, but it always included felonies or crimes that would be classified as felonies today.

It is also important to observe that in the generation that has passed since the 1994 statute, there has been no objective public sign or movement to redefine infamy as the disqualifying standard—until this case. Even Chiodo came to us as an isolated action by a candidate for public office to disqualify his opposing candidate because of a prior conviction for the crime of operating while intoxicated. Id. at 847. Instead, the public discourse in Iowa since the 1994 legislative enactment has essentially been limited to the issue of reinstating voting rights after a felon has discharged his or her sentence, as shown by the actions of our last three governors. No public action has been formally taken to limit the felonies considered to be infamous crimes.

In interpreting our constitution, we must confine our analysis to the history we have been given and the evidence and facts as they exist. At times, this required approach has allowed us to expand constitutional rights beyond what previously existed. See Varnum v. Brien, 763 N.W.2d 862, 883–84 (Iowa 2009) (finding same-sex and opposite-sex couples to be similarly situated for purposes of marriage laws). But these times occur when the evidence and understanding of today clearly supports the result. See id. at 889–96 (examining evidence regarding homosexuality, marriage, and children).

Sevearl amicus curiae briefs highlighted problems associated with felon disenfranchisement policies, but the evidence they presented “does not carry the weight needed to undermine the legislative judgment expressed in 1994 to include all felonies as infamous crimes.” (page 40)

Representatives of the NAACP asserted in an amicus brief and during the March 30 oral arguments that Iowa’s felon disenfranchisement policy is unconstitutional because of its racially disparate impact. The majority was not convinced (pages 40 and 41):

Finally, we acknowledge that voter disqualification based on criminal convictions has a disproportionate impact on voting rights of African Americans and perhaps other groups in society. Yet this outcome is tied to our criminal justice system as a whole and is not isolated to the use of the infamous-crime standard. Racial disparity must be eliminated in society, but its unwanted presence does not necessarily undermine the concept or current definition of infamous crime as a standard for voter disqualification. Moreover, no evidence suggests this state adopted or maintained infamy to discriminate against minority groups.

We also reject Griffin’s claim that her crime of conviction is not infamous because it was not associated with violence. Infamy has never required a violent act.

On pages 41 through 43, the majority notes that selling or distributing cocaine has been illegal in Iowa since 1902, and delivery of cocaine “is criminal in all fifty states as well as under federal law.” The justices found no evidence that prevailing opinion has shifted on whether cocaine delivery should be considered a serious crime. Therefore the crime for which Griffin was convicted “is not misplaced within our law as a felony offense.”

The concluding paragraphs return to the theme of the Supreme Court being constrained by other political happenings (pages 43 and 44):

Our great advantage as a democracy is found in the clamor of debate democracy encourages. [..] Moreover, debate is not just needed for the politics of democracy. It is also needed by courts when called to interpret constitutional doctrine in our evolving world to hear the judgment of the legislature, our citizens, social science, and the scientific disciplines.

In this case, the legislative judgment was clearly expressed, and there is no scientific evidence or facts to undermine that judgment. In truth, the clamor of debate has largely passed over the issue of disqualifying voters in Iowa for a conviction of an infamous crime, and courts are unable to move issues forward on their own perceptions of infamy in today’s society. In this case, there is insufficient evidence to overcome the 1994 legislative judgment, and we must accept it today as the standard for infamous crime. It will be up to our future democracy to give the necessary voice to the issue and engage in the debate that advances democracy.

In the end, we are constrained to conclude that all objective indicia of today’s standard of infamy supports the conclusion that an infamous crime has evolved to be defined as a felony. This is the community standard expressed by our legislature and is consistent with the basic standard we have used over the years. It is also consistent with the constitutional history, text, and purpose of the provision.

As mentioned above, it was a huge oversight for the Democratic-controlled Iowa legislature not to amend the 1994 law on infamous crimes while Vilsack’s executive order on felon voting rights was in effect. If the definition of infamous crimes had been narrowed (for instance, to cover only class A or class A and B felonies) before Branstad returned to office in 2011, thousands more people would not have lost the right to vote under Branstad’s executive order, and in all likelihood Cady would have decided a case like this one differently.

Wiggins’ two-page dissent mostly explains why he changed his opinion since Chiodo, when he advocated for preserving a century of Iowa Supreme Court precedent on the understanding of infamous crimes.

In my Chiodo dissent, I also expressed unwillingness to deviate from our prior caselaw defining “infamous crimes” due to the uncertainty it would cause for voters and election officials in this state. 846 N.W.2d at 864–65. Today I am prepared to change my position on this point. I do so for two reasons. First, Justices Appel and Hecht have set forth compelling reasoning and analysis in their opinions concerning how voters and election officials can determine who is an eligible voter. Additionally, the majority’s analysis is flawed in that it does not truly consider the consensus among other states, most of which allow at least certain felons to vote. By focusing solely on our cruel-and-unusual- punishment jurisprudence to arrive at its conclusion, the majority’s incomplete analysis gives short shrift to a matter concerning individual rights. Its approach represents a stark retreat from the robust analysis of individual rights under the Iowa Constitution this court traditionally applies. See generally Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (applying our traditional approach to matters involving individual rights under the Iowa Constitution).

More importantly, the brief of the Polk County Auditor has caused me to reevaluate my thoughts on this issue. The Polk County Auditor administers the election in the largest and most diverse county in the state. In his brief, he states that under a protocol similar to that urged by Justices Appel and Hecht, he would be able to implement and administer a policy that would ensure all persons with prior felony convictions who were eligible to vote could do so.

Wiggins signaled at several points during the oral arguments that he was uncomfortable with some aspects of current policy on felon disenfranchisement. On the other hand, he sounded concerned about how the court could establish another standard for infamous crimes that 99 county auditors could apply fairly and uniformly.

Bleeding Heartland posted Polk County Auditor Jamie Fitzgerald’s amicus brief and summarized its main points here. Near the end, that post included comments from several county auditors who share Fitzgerald’s view.

Hecht’s dissent begins on page 47 and gets right to the point in the first paragraph: “I believe an infamous crime that disqualifies a citizen from voting must at least feature some nexus to the electoral process.”

Although the legislature expressed its understanding in 1994 that all felony crimes are infamous for purposes of identifying eligible voters, see 1994 Iowa Acts ch. 1169, § 7, the task of interpreting the Iowa Constitution falls to this court—not the legislature. […]

In the plurality opinion in Chiodo, Chief Justice Cady explained “the concept of disenfranchisement was not meant to punish certain criminal offenders or persons adjudged incompetent, but to protect the ‘purity of the ballot box.’” […]

I joined the plurality opinion in Chiodo, see id. at 857, and I continue to believe the animating purpose of the disenfranchisement clause is the protection of the voting process and the integrity of the institutions of democratic governance.

Hecht sees no compelling government interest in Iowa’s current felon disenfranchisement policy. He’s on fire here, taking the majority to task for focusing on prevailing opinions about criminals rather than on the constitutional rights at stake (pages 49 and 50).

The right Griffin asserts—the right to vote—is a fundamental right. […] Because the right is fundamental, we must apply strict scrutiny in deciding Griffin’s claim. A law that impedes a fundamental right is unconstitutional if it is not narrowly tailored to serve a compelling government interest. Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001). In my view, disenfranchising voters for class “C” felony drug offenses will not advance the integrity of elections or institutions of government. Indeed, I am not convinced that Griffin’s conviction for delivery of cocaine or her subsequent exercise of the right to vote will tend to threaten or subvert the voting process; nor will it diminish in any untoward manner the voices of other voters.

I further conclude section 39.3(8) and the related statutes disenfranchising all felons fail to pass strict scrutiny analysis because the classification of all felonies as infamous crimes is not narrowly tailored to serve any legitimate purpose of the disqualification clause. The statute’s definition of infamous instead sweeps broadly past those crimes which might be plausibly understood to diminish the integrity of the voting process or the integrity of democratic institutions of governance, and it disenfranchises persons—like Griffin—whose criminal conduct is completely unrelated to any legitimate nonpunitive and protective purpose of the disqualification clause.

Our strict scrutiny of the statutory framework disenfranchising Griffin and others similarly situated cannot be driven by majoritarian preferences about the propriety of disqualifying all felons as electors. Given the fundamental nature of the right to vote, we should not deny it to Griffin just because most folks favor disenfranchisement of all felons; neither should we deny her the right because “that is the way it’s always been in Iowa” or because “that’s the way it’s done elsewhere.” Our scrutiny must instead confront the hard question of whether there is a compelling governmental interest in disenfranchising her for drug-related offenses. In my view, there is not.

The notion that allowing Griffin to vote will render the ballot box impure, disrupt the electoral process, or damage institutions of democratic governance is fanciful at best. I posit there is no legitimate basis for concluding Griffin’s vote will have any such adverse effects; and precluding her vote will, in my view, advance no compelling government interest.

Hecht then runs through some public policy arguments pointing to the adverse “societal impact of denying the franchise to those convicted of noninfamous crimes” (pages 51 through 54) before concluding,

I emphasize here my purpose is not to diminish the gravity of Griffin’s felony conviction, for which she has been sentenced and punished. I merely conclude continuing to disenfranchise her for that conviction serves no compelling government interest. Because I believe Griffin’s disenfranchisement undermines the government’s compelling interest in her rehabilitation and reintegration to society after her sentence was discharged, I would reverse the district court and remand for entry of a judgment declaring Griffin’s 2008 criminal conviction does not render her presumptively ineligible to vote.

The opening paragraph of Appel’s dissent (page 55) acknowledges it “is not an easy task” to “interpret an anachronistic constitutional provision in the modern context.” After explaining why the Supreme Court, not the state legislature, has the power to determine “which crimes might qualify as infamous for purposes of disqualification from suffrage,” Appel discusses standards for defining an infamous crime. From pages 58 and 59:

Specifically, the drafters of the Iowa Constitution of 1846 distinguished between the terms “infamous crimes” and “felonies.” In several places, the Iowa Constitution used the term “felony.” In article III, section 2 the framers used the language “treason, felony, or breach of peace.” Iowa Const. of 1846, art. III, § 2. The same phrase is used in article IV, section 12, which prevented representatives and senators from being arrested when serving at the General Assembly for all but those crimes. Iowa Const. art. IV, § 12.

But the framers did not use the term “felony” in article II, section 5 of the Iowa Constitution of 1857. If the 1846 and 1857 framers wished to disenfranchise all felons, they could have said so. We have often said that when a legislative body uses different terms in an enactment we assume different meanings are intended. […] Since the framers rejected the term “felony” as the test for voter disqualification, it would be doubly odd to allow the rejected term to be reinserted as a result of legislative action, particularly when the constitutional drafters eliminated the role of the legislature in defining infamous crimes.

Further, other state constitutions use the term “felony” to disqualify voters. […] Iowa simply chose different language.

To me, the text and related history make it quite clear that the court must determine the meaning of the term “infamous crimes” and that the term is not synonymous with “felony.”

Appel recused himself from Chiodo, but like the plurality opinion in that case, he is strongly influenced by an Indiana Supreme Court ruling in Snyder. (pages 62 and 62)

In Snyder, the Indiana Supreme Court concluded that the term “infamous crime” was not synonymous with felony for purposes of the infamous crimes clause of the Indiana Constitution. 958 N.E.2d at 771. The Snyder court reasoned that the definition of infamous crime rests upon the context in which it is used. Id. at 777. The Snyder court recognized that in the context of qualification of witnesses, the focus is on the nature of the crime itself and not the punishment. Id. at 778. The Snyder court rejected the proposition that all modern felonies are infamous, noting that under traditional Indiana evidence law, only nine classic common law offenses were considered infamous. Id. at 779. Similarly, infamous crimes under Iowa evidence law traditionally were treason, crimen falsi, and felonies at common law. Carter v. Cavenaugh, 1 Greene 171, 176 (Iowa 1848).

The Snyder court noted that the Webster’s dictionary contemporaneous with the enactment of the Indiana Constitution defined infamous as “most vile; base; detestable.” 958 N.E.2d at 780 (quoting Noah Webster, A Dictionary of the English Language 202 (rev. ed. 1850)). For the Indiana court, the question was what crimes could be considered “most vile; base; detestable” in the context of the purpose of the constitutional provision disqualifying persons convicted of infamous crimes. Id. The purpose of the constitutional provision, according to the Snyder court, was “to preserve the integrity of elections.” Id. at 782. In order for a crime to be infamous under the regulatory constitutional provision, there had to be a nexus between the crime and the regulatory purposes of the statute. Id. Infamous crimes, for the purpose of voter disqualification, thus were those crimes involving “an affront to democratic governance or the public administration of justice such that there is a reasonable probability that a person convicted of such a crime poses a threat to the integrity of elections.” Id. The Snyder court concluded that there was no such nexus between the crime at issue— battery—and protection of the “integrity of the election process.” Id. at 782–83.

The next section of Appel’s dissent discusses a California case (page 64):

The Otsuka court distinguished between infamous crimes for purposes of determining when charges must be brought before the grand jury and infamous crimes for purposes of determining the competency of a person to testify. 414 P.2d at 421. The Otsuka court held that the purpose of disqualification was to prevent “morally corrupt and dishonest voters [who] … may reasonably be deemed to constitute a threat to the integrity of the elective process.” Id. at 422 (emphasis added). Finding no threat to the elective process, the Otsuka court determined that conviction for selective service crimes should not be considered infamous under the constitutional provision. Id. at 425.

Turning to the proper approach to the Iowa Constitution, I begin with the proposition that the disqualification provision of article II, section 5 should be narrowly construed for two reasons. First, the right to vote is fundamental to the democratic process, and as noted by the Chiodo plurality, abridging the right to vote “must be carefully and meticulously scrutinized.” […] Second, article II, section 5 is a forfeiture provision. The law has traditionally construed forfeiture provisions in a narrow fashion.

The ACLU of Iowa’s appeal on Griffin’s behalf suggested three possible standards that could replace all felonies as a definition of infamous crime in Iowa. One was the “affront to democratic governance” standard the ACLU and Polk County Auditor Fitzgerald advocated. Appel favors a different option, crimen falsi. (page 65)

Based on the above considerations, I conclude that the approach in Snyder is the correct one. 958 N.E.2d at 779, 782–83. Infamous crimes, for purposes of article II, section 5, are those that undermine the integrity of the election process. As suggested by LaFave, these infamous crimes are crimen falsi—crimes where the honesty and integrity of the convicted person is drawn in question, or crimes that interfere with the electoral process. See 1 LaFave § 1.6(d).

I now turn to the final question: the application of the standard to this case. I think it is clear that Griffin’s drug crimes do not qualify as crimen falsi or crimes that interfere with the electoral process. No one would seriously argue that Griffin—who was placed on probation after her conviction and now has fully discharged her sentence—poses any threat to the integrity of the electoral process or that allowing her to vote threatens the administration of justice. Further, her crime was certainly not treason or common law felony. Carter, 1 Greene at 177. I would thus find that Griffin was not convicted of an infamous crime and that she is entitled to exercise the fundamental right to vote of every citizen under article II, section 1 of the Iowa Constitution.

Appel found amicus briefs filed by the NAACP and the League of Women Voters persuasive on the “disturbing features” of disenfranchisement policies in U.S. history. (pages 66 and 67)

While there is no allegation of intentional discrimination in this case, the amici point out that felony disenfranchisement has grossly disproportionate effects on African American males. Researchers at the Sentencing Project estimate that approximately twenty-five percent of African American males in Iowa are disenfranchised by the legislature’s implementation of article II, section 5. […] The exclusion of ex-felons in Iowa has produced a disenfranchisement rate for African Americans in Iowa that is “more than triple” the national rate. […]

The amici further point out that disproportionate voter disenfranchisement does not simply impact the individual, but penalizes the communities from which wrongdoers come and reduces their political clout. As noted by the League of Women Voters, “[o]ne of the most prominent and consistent finding[s] in [the] literature is that [felony disenfranchisement] laws produce a disproportionate effect on black communities.” […]

Further, it is not clear exactly what policies are actually advanced by voter disenfranchisement.

After rescinding Vilsack’s executive order, Branstad established a process for Iowans to apply to have their voting rights restored. But Appel notes on page 68 that “there is no constitutional requirement that the governor establish an administrative process for restoring voting rights.” Moreover, recent political events suggest that “those convicted of felonies who have fully served their sentences will have their rights subject to flip-flopping executive orders depending upon the political philosophy of the executive rather than upon a more stable legal regime. Sadly, that is exactly what ensnared Griffin into the law’s web after she completed her criminal sentence.”

Amen to that.

I felt heartbroken reading this statement from Griffin, released by the ACLU of Iowa today:

“I feel like my world has been turned upside down. This has been a process that has taken years.

I want to thank the justices for taking the time to hear my side but I wish the decision would have been different. For me, nothing has changed. I still cannot vote.

People like me want to be productive members of society, so we should be treated that way. I want to be able to cast my vote regarding my children’s school, regarding my community, regarding things that are happening in my life because they affect me.

I also want other people to avoid going through what I had to go through: being taken into custody for something I didn’t even know was wrong; facing 15 years in prison with young children; paying out thousands of dollars in legal fees and going through the stress of a trial.”

Griffin is referring to her March 2014 perjury trial. She was charged for having voted in an uncontested local election in 2013, to show her curious four-year-old what voting was like. Griffin did not realize she was ineligible to vote under Branstad’s 2011 executive order. A probation officer had told her in 2008 (when Vilsack’s order was still state policy) that she would be able to vote after completing her probation. A jury acquitted her in less than 40 minutes, Ryan Foley reported for the Associated Press at the time.

Prediction: Branstad will make a big show of restoring Griffin’s voting rights soon after receiving her formal application. His staff are proud of how hard they work to process such forms, ignoring the reality that most felons will never be able to overcome the barriers the governor put in their way.

The ACLU of Iowa released this statement from Rita Bettis, the organization’s legal director and the attorney who argued this case before the Supreme Court.

“Today, justice was denied in a narrow 4-3 decision. But today’s decision serves as a call for movement by the people and our representatives for a long-overdue state constitutional amendment to right this profound wrong. Those of us who have a political voice must all act now on behalf of those whose voice has been silenced.

Thousands of Iowans, and disproportionately African-Americans, remain unable to vote or participate fully in their communities. And as the Court points out, Iowans who have felony convictions who have fully served their sentences are still subject “to flip-flopping executive orders depending on the political philosophy of the executive [governor] rather than on a more stable legal regime.

This is no way run a democracy. Iowa remains of just one of three states that permanently banned all people with a felony conviction from voting. The state of affairs in Iowa goes against the trend of the nation. With this heartbreaking decision, Iowa remains one of just three states, along with Florida and Kentucky, that still impose permanent disenfranchisement.

But the ACLU of Iowa stands strong in fighting for the right of Iowans to exercise their right to vote. We will continue to fight for that right.

For Kelli personally, we will be working with her to go through the arduous process of applying to the governor’s office for a restoration of her voting rights. We’ll also continue to help educate Iowans on the complex patchwork of voting laws left by a series of executive orders. (Refer to flier made available to reporters and tell them it’s our web site.) And we call on the Governor to put automatic restoration for those who have served their time in place once more.

We remind those who have had their right to vote restored by executive order that they still have it. Today’s decision did not take away your right to vote. Exercise it!

And, most ambitiously, we’ll start work starting today on a constitutional amendment so that finally, the thousands of Iowans who have completed their sentences can once again be full members of society and exercise their right to vote. We join with our fellow Iowans in calling for change.”

Ryan Foley’s report for the Associated Press included other ACLU reaction:

“This ruling means that Iowa will continue to serve as a notorious outlier when it comes to restricting people’s right to vote,” said Julie Ebenstein, an attorney with the American Civil Liberties Union’s Voting Rights Project. […]

More than 56,000 felons have been disqualified from participating in Iowa elections [since Branstad’s executive order]. Civil-liberties advocates had hoped the case would result in most of them being able to vote in November, when Iowa might be a swing state in the presidential election.

Iowa, Florida and Kentucky are the only states with lifetime voting bans for felons unless their rights are restored by the governor.

Iowa Secretary of State Paul Pate welcomed the ruling in this written statement:

“I applaud the Iowa Supreme Court in their analysis that felonies are infamous crimes, and therefore, felons lose their voting privileges as outlined in the Iowa Constitution. This ruling goes in line with 150 years of precedence and has been reaffirmed by the people of Iowa and their elected representatives on multiple occasions.

“I took an oath to uphold the Iowa Constitution and the laws of our state. That is what I will continue to do and that is what the Iowa Supreme Court did in this case. I agree with Chief Justice Cady, who wrote that the term “infamous crime” was generally recognized to include felonies at the time our Constitution was adopted, and that meaning has not sufficiently changed or evolved to give rise to a different meaning today. My office will continue to work to preserve the integrity and fairness of Iowa elections and strive to help and encourage every eligible Iowan to participate in the electoral process.”

Pate engaged in some disgraceful demagoguery about this case shortly after the Supreme Court heard oral arguments.

The only silver lining from today’s opinion is that it doesn’t set the stage for a campaign against retaining Justices Cady, Appel, and Hecht, who will all be on the statewide ballot this November. Pate sounded poised to lead the charge against them if the ruling had gone the other way.

The Iowa Democratic Party released this statement from state party chair Andy McGuire:

“Today’s Iowa Supreme Court decision to uphold Iowa’s ban on voting rights for felons was extremely disappointing and keeps Iowa on the extreme fringe of voter disenfranchisement. It is shameful that revoking felons’ rights was one of Gov. Branstad’s first actions after being sworn in as Governor in 2011. As Democrats we believe in expanding the opportunity to vote, not limiting it. The restoration of voting rights can help facilitate rehabilitation, reduce recidivism and foster a smoother transition back into ordinary life. A lifetime ban shames people and is not a productive practice for our state. We hope that Ms. Griffin and the Iowa ACLU will continue the fight to enfranchise voters and allow Iowan citizens, including those who have paid their debt to society, a chance to choose their leaders.”

Democratic State Representative Mary Wolfe, who is also a criminal defense attorney, posted on Twitter this morning, “I’ve decided under Griffin majority IA Gen Assembly can redefine infamous crime as something other than all felonies so CHALLENGE ACCEPTED.” She’ll need to be part of the majority caucus to make any headway. If Republicans maintain control of the Iowa House and/or win a majority in the state Senate after the 2016 elections, all discussion of revising state law on infamous crimes will be off the table–not that Branstad would sign any law narrowing the definition of infamous crimes.

As Appel posited in his comment about “flip-flopping executive orders depending upon the political philosophy of the executive,” nothing is likely to change for most disenfranchised felons in Iowa until a Democratic governor is elected.

LATE UPDATE: Governor Terry Branstad discussed his voting rights policy with reporters on July 11. From Erin Murphy’s story for the Waterloo-Cedar Falls Courier:

Branstad called voting “a privilege,” and said that privilege must balance a person’s rights and responsibilities.

“Restoring voting rights to Iowans who have committed felonies is something that I take very seriously as governor,” Branstad said. “To automatically restore the right to vote without requiring the completion of the responsibilities associated with the criminal conviction would severely damage the balance of rights and responsibilities that we all have as citizens.”

Critics of the rule say it places undue stress on a person who has paid his or her debt to society, and requiring convicted felons to pay all court costs before having voting rights restored unfairly punishes low-income residents.

Branstad said the application is simple and does not require a lawyer, and paying court costs is a part of the punishment that must be completed.

Branstad said there are more than $699 million in unpaid fines and court costs in Iowa.

Here are all the Griffin opinions in their entirety:

  • Equal Protection, anyone?

    I can see why Cady kept the law unchanged if it depends on the definition of “infamous.” But I can’t see why Griffin did not demand equal protection of the law under the 14th Amendment.

    • not an attorney

      but my understanding is that tons of federal and state case law allows states to restrict voting rights for reasons related to a criminal conviction. So she’s not going to be able to claim equal protection grounds.

    • Equal protection argument disallowed under USSC caselaw.

      Here’s the case:

      https://supreme.justia.com/cases/federal/us/418/24/case.html

      The 3 minute analysis here is that state reduction in voting rights based on crime is anticipated in the text of the constitution, separate from reduction on voting rights for other grounds, and therefore states are not subject to sanction for doing so.

      All of this means that a blanket prohibition on felony voting is allowed under the US Constitution should a state choose to do so. There are three states which have done so in a way similar to IA; so the only question the Iowa Supreme Court is allowed to answer, is, “Is such a practice allowed under the Iowa Constitution?” – no 14th Amend. claim can be made.

  • The larger story

    Republicans are happy to engage in this denial of rights because it reinforces the justifications of their advantages in their mind. It is their evergreen subtext; those with wealth; no matter how they obtained it whether it was hard work, luck, fraud or inheritance, deserve it morally because wealth implicitly bestows virtue. The obverse case simply follows; those without relative wealth must therefore not deserve it because relative poverty is simply evidence of depravity in their mind. Having Democrats defend the voting rights of convicted criminals on the basis of who can afford to have those rights restored is seen from their perspective to be proof of their case.

    The fact remains that millions of people choose the relative poverty of public service because they find meaning in service to others. Republicans demand that those government workers only enforce the rights of property owners at the expense of human rights while cutting taxes for those who benefit from property rights. At what point does that hypocrisy begin to tear at the fabric of community? When people like Professor Hagle are the only public servants left willing to defend the indefensible.

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