Iowa Secretary of State responds to lawsuit over voter roll maintenance

Iowa Secretary of State Matt Schultz has asked a Polk County district court judge to dismiss a lawsuit over emergency voter roll maintenance rules and reject the plaintiffs' efforts to prevent the state from implementing the new procedures. Accompanied by Attorney General Tom Miller at a joint press conference today, Schultz made his case for the new rules and the procedure through which he enacted them. This pdf file contains Schultz's affidavit and supporting documents filed with the Polk County district court on August 16. The American Civil Liberties Union of Iowa and the League of United Latin American Citizens filed a lawsuit on August 8 challenging the rules.

After the jump I've posted the full text of the Secretary of State's press release and transcribed a timeline Schultz provided to reporters today. I also enclosed details on the normal administrative rulemaking process, which provides opportunities for public comment and legislative review before new rules go into effect. While Miller defends the new rules as a "balance between ensuring voting integrity and preventing voter suppression," I share the Des Moines Register's view that Schultz's proposed procedure "could prompt some legitimately registered voters to withdraw their registration to avoid risking criminal prosecution."

8/17/2012

Schultz Asks Judge to Deny Stay, Dismiss Lawsuit Challenging Legality of Emergency Administrative Rules

Emergency rules protect voting rights of Iowans, Schultz says in response to suit

(Des Moines)-Secretary of State Matt Schultz asked a Polk County judge to deny a stay and dismiss a lawsuit seeking to block the state from enacting emergency rules which facilitate the state's access to a federal immigration status database.

The lawsuit, filed August 8th by the American Civil Liberties Union (ACLU) of Iowa and League of United Latin American Citizens (LULAC) of Iowa, challenges the legality of two emergency administrative rules that Schultz enacted on July 20th.

The rules implement Iowa's access to the Systematic Alien Verification for Entitlements (SAVE) program database, which is maintained by the United States Citizenship and Immigration Service (USCIS), an agency within the U.S. Department of Homeland Security. The SAVE program enables governmental entities to accurately determine an individual's immigration status.

In March, based on a comparison of Iowa Department of Transportation records and state voter registration records, Schultz determined that more than 3,500 foreign nationals registered to vote in Iowa since 2008, and about 1,200 voted in the 2010 general election. Concerned about potential voter fraud, Schultz enacted emergency rules consistent with federal requirements to enable the state's access to the SAVE database, to ensure the accuracy of state records on individuals' immigration status.

"The state's ability to access this federal database is a very important safeguard for anyone whose immigration status may have been wrongly called into question," Schultz said. "Since this can impact something as important as someone's right to vote, I think it's vital to make sure that we have accurate information before beginning the process of removing anyone from the voter registration rolls. That's why I'm seeking this data."

In a response filed Thursday in Polk County District Court, Schultz wrote that due to the time constraints of the upcoming general election and the statutory deadline for challenging voter registration, he determined that good cause existed to forego notice and public comment on the rules he implemented to facilitate the state's access to the SAVE program.

"I determined that the rules provided a public benefit so as to waive the thirty-five day publication period," Schultz wrote in an affidavit. "For individuals suspected of being illegally registered to vote it provides a number of safeguards to ensure that my office is proceeding on valid information, and it provides notice and opportunity for an individual to be heard prior to removal from the registration records," he added. "For all other voters, the rules provide a transparent, uniform system for investigating and removing ineligible voters from registration records."

According to the state's response to the lawsuit, there was not enough time between July 17, when the U.S. Department of Homeland Security approved the state's application for access to the SAVE database, and the November 6 general election to promulgate new rules consistent with the new federal requirements. Non-emergency rulemaking procedures take a minimum of 108 days, and typically last as long as six months. In addition, state law prevents removal of an individual from the registration records unless a complaint is filed more than 70 days prior to the election. For the upcoming November election that deadline is August 28.

"Once an election occurs and someone has cast their vote, we can't unring that bell," Schultz said.

Schultz has also proposed permanent administrative rules, which mirror the emergency rules, through the standard notice and comment process.

Attorney General Tom Miller, who is defending Schultz in the lawsuit, said the state is seeking a balance between ensuring voting integrity and preventing voter suppression. "We're working together here to make sure that people who are not eligible to vote don't vote," Miller said. "But just as important, we're also making sure that we have extra safeguards in place that protect the rights of those who are entitled to vote. It's very important that we not deter or suppress anyone from voting if they're truly eligible to cast a vote."

In response to the lawsuit asking a judge not to grant the plaintiffs an injunction or stay, the state argued that the petitioners failed to meet the necessary legal grounds for a stay.

According to the state's response, "(The) rules provide voters with a clear, uniform procedure for identifying, investigating, and removing ineligible voters from registration records. Staying enforcement of these rules will remove transparency from the process and compromise voters' faith in the voter registration system. Staying enforcement of these rules will undermine voter confidence in the Secretary and the State's ability to conduct free and fair elections."

Court documents available here:

http://www.state.ia.us/governm...

Details from the Iowa Secretary of State SAVE Application 2012 Timeline:

March 19

Iowa DOT [Department of Transportation] provides SOS files of foreign nationals with Iowa DLs [driver's licenses] or IDs [photo identifications]

March 30

Initial SOS verbal request to U.S. DHS [Department of Human Services] for SAVE database access

April 18

Formal SOS application to U.S. DHS for SAVE

April 25

U.S. DHS seeks legal guidance on Iowa request from U.S. DOJ [Department of Justice] Voting Rights Section

May 7

U.S. DHS contacts SOS about SAVE program, inquires about Iowa procedures

May 22

SOS responds to U.S. DHS questions, outlines proposed Iowa procedures

May 25

U.S. DHS indicates will contact Office of Chief Counsel about Iowa application

June 26

SOS requests update from U.S. DHS

July 17

U.S. DHS will authorize SOS access to SAVE database, requires new application

July 20

SOS drafts and adopts emergency rules for SAVE database, submits new application

July 25

U.S. DHS begins processing new Iowa application

Details on the normal Iowa administrative rulemaking process, which Schultz bypassed:

Notice of Intent to Adopt Rules (Iowa Code §17A.4 )

State agencies often draft administrative rules or propose to modify or change existing administrative rules. Rules may be proposed because of new laws, or because changes are needed to existing programs or simply to keep current with federal regulations. Some programs and responsibilities that are carried out by state agencies require that state laws be at least as strict as federal laws.

Proposed rules must be formatted in a certain way as outlined in Iowa Code, Chapter 17A (Iowa Administrative Procedure Act). The most important thing to know is that old rule language is shown with a strike through and the proposed rule language is shown using underlined text. In the Iowa Administrative Bulletin, new language is indicated by italics, rather than underlining.

Proposed new rules are reviewed and approved by the administrative head of each agency. The rules are then filed in an action which is called the "Notice of Intended Action." The rules are filed with the Governor's Administrative Rules Coordinator. The Administrative Rules Coordinator is responsible for coordinating all rules that are proposed by the Governor's executive branch agencies. This part of the process usually takes about fifty to sixty five days to complete.

Iowa Administrative Bulletin (IAB)

Next the proposed rule is published in the Iowa Administrative Bulletin (IAB) about nineteen days after the Administrative Rules Review Coordinator has received the rules. The IAB publications are available on the Internet (http://www.legis.state.ia.us/IAC.html) and in paper form in most public libraries.

Public Comment Period and Public Hearings

Concurrent with the publication of the "Notice of Intent to Adopt Rules" in the IAB the first twenty days of this period is reserved for the public to comment on any aspect of the proposed rules. The state agency may decide to extend public comment period at their discretion. A public hearing by the state agency to take comments is not required unless at least twenty-five persons demand a hearing. [...]

At a public hearing people are encouraged to submit their comments in writing for the record, and orally if they chose. [...] Any individual or organization desiring to comment on the proposed rule may submit comments from the time the Notice of Intent is filed through the public comment period. [...]

Agency Adopts Rules

The administrative head of the state agency may adopt the proposed rules not less than thirty-five days from time that the "Notice of Intended Action" was first published in the IAB.

The rules must be "adopted" by the state agency so it can take the next step and file the "Adopted and Filed" version of the rules with the Governor's Administrative Rules Review Coordinator for a second time. This part of the process takes about nineteen days. Once this is completed the rules are again published in the IAB and become a part of the IAC. The first possible day that the rules can become effective is thirty five days after they published for the second time.

Legislative Review

At some point during this process, the proposed rule is reviewed by the legislature's Administrative Rules Review Committee (ARRC). Generally, the proposed rule is evaluated by the ARRC after the "Adopted and Filed" version is published in the IAB.

The ARRC does have the discretion to object to a rule. (If objection does occur this effectively eliminates the presumption that the rule was valid in the event the rule is taken up in a subsequent judicial review.) The ARRC may also delay the effective date of a proposed rule pending additional review by the General Assembly. Although it does not occur frequently the Iowa General Assembly has the ability to rescind any administrative rule by joint action of both the Senate and the House chambers. This oversight power is held by only a few state legislatures.

UPDATE: Radio Iowa posted the audio and more quotes from the Miller/Schultz press conference. It is disappointing to watch Miller go along with this charade, since he should know better. The ACLU of Iowa's Executive Director Ben Stone released this statement today.

"By his own public admission, the Secretary of State does not have time or permission to use federal citizenship (SAVE) records to purge the rolls before the election. This is due in no small part to his decision to wait until weeks before the election to promulgate rules secretly and without public input. His negligent delay cannot serve as justification for his avoiding public scrutiny or for removing voters so close to an election.

"If allowed to take effect, these emergency rules will permit the use of unspecified databases - not just the SAVE database - to purge registered voters from the list using unspecified criteria. The 14 days permitted in the rules to challenge ones removal is laughably insufficient, considering how slow government bureaucracies can move.

"The fact that Iowa Attorney General Tom Miller is fulfilling his duty to defend the Secretary of State should come to no surprise to Iowans. His office has defended state agencies in lawsuits brought by the ACLU Foundation of Iowa for decades.

"Voting is such an important right that rules regarding the elimination of registered voters should be adopted with full public input and care in drafting using specified criteria and reliable sources. We filed our lawsuit to ensure that the careful rule making process contemplated by Iowa law is followed."

  • the DMR is uninformed

    This has nothing to do with "illegal immigrants." Nothing at all.

    The individuals who will be called upon to prove their citizenship status are lawfully admitted to the US and naturalized US citizens.

    March 19

    Iowa DOT [Department of Transportation] provides SOS files of foreign nationals with Iowa DLs [driver's licenses] or IDs [photo identifications]

    Iowa does not grant a driving permit without proof of lawful immigration status. This was affirmed by the Iowa Supreme Court in 2005, Sanchez vs State of Iowa.

    Their are multiple classes of legal entry, corresponding to temporary (student, diplomat, etc) visas or immigrant visas. Legal entrants may apply for a driver's permit in Iowa by providing any of the following documentation.

    The needle Schultz is threading is that lawful entry does not prove citizenship status. So an example of someone who Schultz might have on his list pre-2008 is Anesa Kajtazovic. She became a naturalized citizen shortly before her 18th birthday. If she received her driving permit/state id at age 16, her status would have still have been permanent resident. Mismatch! Presumably, USCIS has updated her citizenship status since 2004 but perhaps no.

    That Tom Miller is defending this is shameful. Let's be clear about what is happening here. A hearing is likely harassment of a US citizen. I think it's a very bad precedent to defend calling on US citizens to "prove" their status any time a petty government official can't access reliable federal records. They are using voting as a shield for "papers, please" exercises. The only reason they get away with it in Iowa is because the percentage of licenses issued to foreign-born residents is so small.

    This is a complete waste of taxpayer monies. People on the immigrant track to US citizenship are very unlikely to risk pending citizenship by voting while still foreign nationals. The candidates just aren't all that, please.

  • Miller's statement

    "What the secretary outlines is a process that tries to address a fact that he ran into earlier this year that he couldn't ignore," Miller said. "Nobody that has control over elections can ignore 3,582 people who sometime during the last four years were not citizens but are now registered."

    Since nobody is coming forward with some context, I'll provide it.

    Number of naturalizations in Iowa by year:

    2008: 3503

    2009: 2198

    2010: 1858

    2011: 1840

    That's 9,399 naturalized citizens in Iowa during the last four years.

    3,582 people who sometime during the last four years were not citizens but are now registered.

    OMG! What a pair of chumps. Really, one should ask why MORE aren't registered to vote.  

  • the DMR now has an article

    describing Miller's involvement as "bipartisan support."


    The other revelation from the news conference was that even though more than 3,500 voters of questionable eligibility have been identified - and that a portion of those may be more accurately identified as non-citizens prior to the November election - most could very well still cast votes on Election Day.

    The deadline for removing registered voters from the state's voting rolls is less than two weeks away, on Aug. 28. Because the state still hasn't gotten access to the federal database and because of that 14-day window for voters tagged as ineligible to challenge that designation, it will be impossible at this point to remove them from the rolls, Schultz and Miller said.

    This is borderline yellow journalism.

    49 other states have this happening, you know. Legal residents obtain driver's licenses. They go on to become US citizens. Then they register to vote. Only in Iowa are the Secretary of State and Attorney General pissing their pants. And why? Because the SOS is combing through DOT records of immigration status at time of permit application. The function of DOT is not to monitor the citizenship status of Iowans post-license issuance.

    Questionable eligibility? A portion "may" be identified as non-eligible? This is based on???

    3582/9399 means that only 38% of new Iowan Americans have registered to vote. Clearly these bureaucrats have never been on a voter registration drive in neighborhoods with a high proportion of foreign-born. Hello? Why do you think the Kajtazovic campaign was able to register so many new voters? And for their trouble, perhaps they will now get called up for a hearing and as the Des Moines Register "reports,"


    a complaint would have to be filed by a citizen in the voter's home county seeking to remove the voter from the rolls, which in turn would initiate a county-level hearing, which could be appealed in court.

    • correction

      in addition to IA, FL and NM have applied to use SAVE for systematic checks. FL, of course, proceeded by manual "investigation," now suspended.

      WA and OH have made inquiries, but:

      Washington: Secretary of State Sam Reed requested access to the Department of Homeland Security's Systematic Alien Verification for Entitlements (SAVE) database. However, elections officials are unsure how or if they will be able to use the database. They need alien ID numbers to use the database and are not sure how they will obtain those.

      Ohio: Secretary of State Jon Husted wants access to the Department of Homeland Security's Systematic Alien Verification for Entitlements (SAVE) database. He said the database would be valuable in unique situations when a voter's citizenship is called into question and would not be used on a widespread basis to purge Ohio's voter rolls of non-citizens.

      Source: Fair Elections Legal Network, Aug update.

      As extensively documented in the SAVE faq, state/county officials will need document numbers (from naturalization certificates, etc) to use the database and the database is not updated immediately for new citizens, which is why WA and OH are expressing doubt about using access as the foundation for systematic updating of voter rolls.

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