New Iowa voter list rules won't affect 2012 election

A Polk County District Court judge issued a temporary injunction preventing Iowa Secretary of State Matt Schultz from implementing new rules on removing registered voters before the 2012 general election.

The American Civil Liberties Union of Iowa and the League of United Latin American Citizens filed suit in early August to block the new rules, which Schultz enacted through emergency procedures. Schultz claimed that he needed to bypass the usual rulemaking process, which involves public input and legislative review, in order to remove alleged non-citizens from the registered voter rolls before the 2012 election.

District Court Judge Mary Pat Gunderson denied Schultz's motion to dismiss the lawsuit earlier this week and on September 13 granted plaintiffs a temporary injunction. Her ruling on that matter is a good read (pdf). KCCI-TV summarized it here.

Judge Gunderson describes the rules at the center of this controversy on pages 1 and 2 of her decision granting the temporary injunction:

The first new rule, the Voter Complaint Rule, is codified at Iowa Administrative Code rule 721-21.100 and allows any person "to file a complaint concerning an alleged violation of any provision of Iowa Code chapters 39 through 53 [relating to elections]." Such complaints must be made on a form provided by the Secretary and signed by the complainant. Id. the Secretary is then required to forward the complaints to the appropriate governmental agency for investigation. Id.

The second new rule, the Noncitizen Registered Voter Identification Rule, is codified at Iowa Administrative Code rule 721-28.5. This rule establishes a process by which the Secretary may verify the citizenship of individuals registered to vote in Iowa. In order to perform a verification under the Citizenship Verification Rule, the Secretary must (a) compare Iowa voter registration records against a list of foreign nationals residing in Iowa, (b) confirm whether any given voter's registration information is "an exact match" to an individual listed in the index of foreign nationals living in Iowa, (c) determine whether any individuals with "an exact match" have recently been naturalized, (d) provide notice to unnaturalized individuals of the possibility of removal from the voter rolls due to an apparent lack of citizenship, (e) provide an opportunity for the individuals to respond within fourteen days, and finally (f) remove unresponding individuals from the voter rolls. Iowa Admin. Code § 721-28.5. If a citizen is removed from the voter rolls, he or she may request an evidentiary hearing before the Iowa Voter Registration Commission pursuant to Iowa Admin. Code. § 821-1.5 to 1.6, and/or re-register to vote at the polls on Election Day pursuant to Iowa Code § 48A.7A.

The judge emphasized on page 4 that this ruling only pertains to the request for a temporary injunction and does not address plaintiffs' "further request for a permanent injunction or the merits of the case."

Page 5 lays out the criteria by which Judge Gunderson evaluated this request:

To determine whether a stay or other temporary remedies should be entered pursuant to section 17A.19(5)(c), the Court must consider and balance the following factors:

(1) The extent to which the applicant is likely to prevail when the court finally disposes of the matter. (2) The extent to which the applicant will suffer irreparable injury if relief is not granted.

(3) The extent to which the grant of relief to the applicant will substantially harm other parties to the proceedings. (4) The extent to which the public interest relied on by the agency is sufficient to justify the agency's action in the circumstances.

Gunderson determined that the petitioners (ACLU and League of United Latin American Citizens) were likely to prevail on the merits of their first claim when the court considers this case further. Pages 6 and 7 expose some obvious flaws in Schultz's logic:

Respondent argues "good cause" existed here for such rules because notice and public comment were impracticable due to the limited amount of time between the promulgation of the rules and the November election. He contends it was impractical for him to initiate rulemaking until he received approval from the U.S. Department of Homeland Security to use the federal database maintained by the U.S. Citizenship and Immigration Service to verify the citizenship status of current and future Iowa voters. The Secretary argues that because he did not receive approval for access to this database until July 17, 2012, he could not have initiated rulemaking until then, and at that point it was too late for such rules to become effective through the normal rulemaking procedures before the November elections.

The Court finds the Secretary's argument to be less than persuasive. The new rules do not require or reference the use of the federal database that was purportedly the reason the Secretary had to wait until so close to the election to propose these rules. Thus, it is unclear why the Secretary waited until he got approval to use the list to begin the rulemaking procedures. The Court also notes it appears from the record the Secretary still does not have access to the federal database. The record shows the Secretary was aware of the alleged discrepancy between the Iowa Department of Transportation (DOT) list and the voter registration list, showing the alleged voter fraud, in March 2012 when the DOT provided him with the list of the "3000 foreign nationals . . . registered to vote in Iowa." Thus, the Court sees no reason why he did not initiate the rulemaking procedures at that point, if not sooner, with over six months before the November elections. The only emergency claimed by the Respondent is the short amount of time between July 17 and November 6, 2012. However, this timeline was completely self-imposed. The date of the November 2012 general election is common knowledge. The Secretary was in office for eighteen months during which time he could have initiated the normal rulemaking procedures. At a minimum he had over six month[s] to do so after he learned of the alleged voter discrepancies on the lists in March 2012.

Schultz had argued that the plaintiffs had no standing to challenge the voter rolls rules, but Judge Gunderson rejected that argument when she rejected the motion to dismiss. Schultz claimed that the new rules have not compromised anyone's right to vote, but the judge found,

[T]he Petitioners have shown a sufficient potential that they and their members will suffer irreparable harm if the Secretary proceeds to send notices to qualified Iowa voters in an effort to remove them from the voting lists. Affidavits provided by the Petitioner show the DOT list contains inaccuracies by showing the affiants were not U.S. citizens when they obtained their drivers' license, but subsequently became a citizen and then registered to vote. Although the Respondent is correct the rules allow the recipients of such notices to challenge this finding or provide proper documentation to refute the allegations at the polling place, such actions would likely have a chilling effect on qualified voters right to vote.

In addition, as shown from the affidavits provided by the Petitioners, some members of the Petitioners' organizations have been harmed by the chilling effect the rules are having. One affidavit states Iowa residents who are qualified to vote feel deterred from registering to vote for fear of erroneous identification, and if that occurs they will have to endure the time, financial costs, and possible reputational harm from a wrongful criminal investigation into their legal status.

Accordingly, the Court concludes the Petitioners have shown there is a sufficient likelihood they will suffer irreparable harm if a temporary injunction is not issued at this point in the litigation.

Schultz's claimed that blocking the new rules would undermine the public interest and people's faith in the election process. On the contrary, the judge concluded,

The affiants show the rules have in fact created confusion and mistrust in the voter registration process. They have created fear that new citizens will lose their right to vote and/or be charged with a felony, and caused some qualified voters to feel deterred from even registering to vote. Accordingly, the Court concludes the public interest relied on by the Secretary is not sufficient to justify his use of the emergency rulemaking procedures, and thereby the circumvention of the valuable notice and public comment, especially when the fundamental right of qualified citizens to vote is involved.

Schultz sounded like a sore loser in this statement issued yesterday:

"Today's decision is only a temporary injunction, but unfortunately this ruling could open the door for noncitizens to continue voting in Iowa elections.  I am committed to fair and honest elections. I worked to prevent noncitizens from voting using a fair and reasonable process and that is still my intent."

He also said, "I am resolved to continuing to fight for the people of Iowa and protecting the integrity of our elections."

Attorney General Tom Miller, whose office is defending Schultz in the case, released a statement saying he respected Gunderson's order but believes the secretary was "legally justified" in enacting the rules.

"This case involves finding a delicate balance between using the tools available to enforce an existing state law, and ensuring that our government does not deter even a single person from casting a vote," Miller said. "In this case we argued that Secretary Schultz's emergency rules would have enabled his office to gain access to existing, real-time federal records that can provide an extra safeguard to anyone whose voting eligibility has been called into question. We will continue to work with Secretary Schultz to strike the right balance."

I know that the attorney general is supposed to defend state agencies in legal matters, but I am still surprised to see Miller going along with this fool's errand. Schultz acts as if illegal voting is a widespread problem, but when these alleged "non-citizen" voters are investigated, it's likely to be shown that most have been naturalized since 2008. Miller should understand that the chilling effect from letting these rules go forward would have undermined far more Iowans' voting rights.

The ACLU of Iowa and League of United Latin American Citizens hailed the success of their motion "to halt the Iowa Secretary of State in his implementation of irresponsible and destructive administrative voter suppression rules."

P.S.- Iowa's judicial selection system worked well in 2011, when Governor Terry Branstad appointed Gunderson to fill a vacancy on the Polk County District Court.  

  • a thistle for Rekha Basu

    "We're working together here to make sure that people who are not eligible to vote don't vote," said Attorney General Tom Miller.

    Basu: But on a closer look, Miller's endorsement might just be a function of his job description, to defend the state against challenges.

    Nonsense. Enough with the "Good German" routine. Miller owns his own statements. This Evil Republicans vs hapless Dems routine is getting old.

    Would anyone here sanction sending state inquiries to, say, Council Bluffs residents (including Matt Schultz) who may have at one time lived in neighboring Nebraska? Prove that you're not voting twice! Of course not. That's what is important here. The state is pursuing persons that can be identified by a particular association -- in the case of Schult'z effort, not born in the US. This is what Miller is defending.

    As far as I can tell, Democrats are not doing anything to defend against the "chilling" implications except to support judicial decisions that help them hustle Dem-leaning voters to the polls. After all, these articles are always quick to point out:

    Beginning with a presumption of guilt is not what the Constitution intended. Sadly, this has the appearance of a fishing expedition designed to keep Latino immigrants - who tend to vote Democratic - from voting. Iowa is a swing state, after all.

    Basu's employer, "the newspaper Iowa depends on," sloppily referred one month ago to Schultz's target as "illegal immigrants," not once, but twice. In a blog post, the DMR referred to the 3,500 as voters of "questionable eligibility." Own the fact that this contributes to undermining public confidence.

    The key point here -- which Basu and others are reluctant to talk about except in the context of the cliche-ridden "fearful Latinos" -- is that "beginning with the presumption of guilt" has bipartisan support. Democrats are anxious to appear equally vigilant on the voter fraud issue and are hiding in the bushes like cowards while relying on defenders of the Constitution like the Honorable Mary Pat Gunderson. Why? Let's point out the obvious: potential retaliatory action like the flaccid threats emanating from comments at TIR. Apparently Judge Gunderson is up for retention.

    MD Dems, from the state party to the governor, have been proud to announce their "zero tolerance" for "voter fraud" while making an example of Wendy Rosen. Color me unimpressed. There are municipal jurisdictions that relax the rules to allow participation of even non-citizens with legitimate interests in local affairs. For example, Takoma Park, Glen Echo, Somerset, Martin's Additions, Garret Park and Barnesville MD all permit non-citizens to vote. Similarly, municipalities that have many "duals" -- people who live part-time in their jurisdictions -- also allow the part-timers to vote on local affairs. Unfortunately for Wendy Rosen, this is usually accomplished by separate ballot, to avoid federal duplication, which is not how St. Petersburg FL (where she owns property) administers elections. Now she's a poster girl for "voter fraud" and all the "zero tolerance" huffing and puffing by MD Dems and Republicans.

    Anyone trying to make a political point is going to do what Schultz is attempting with his list-building -- target a group with an identifiable attribute or association that makes it more likely to find some unfortunate circumstance or error where the assumption of guilt can be applied to whip up a lynch mob. Might as well put together a list of people who own property in more than one state and send out the notices.

    I've wondered before how many new citizens the Kajtazovic campaign may have registered in 2010. It is cowardly of Democrats to rely on these voter registration drives while remaining quiet, and even offering "bipartisan support" when the same demographics are targeted for special scrutiny.

    SOS Schultz should just send notices out to Iowans at random, like a lottery, to prove various things like citizenship, and, if guilty of having left the state at any time (always a source of suspicion) proving that votes are cast in Iowa, and Iowa alone. Of course he won't do this because his ass would get bounced out of office in 2014.

    Basu: What Schultz didn't say, and maybe didn't know, is that in the five years ending last Sept. 30, 11,492 Iowans became U.S. citizens.

    It's taken a month for anyone at the DMR to point this out.

    Stop hiding behind "fearful Latinos" and Good German excuses. Iowans and all Americans should be opposed to these witch hunts, period. Your choices are to standardize electron administration across the fifty states and DC and perhaps establish interstate voter list compacts w/ full participation and point-of-service citizenship verification at time of initial registration. Or, you accept the incredibly low rate of error associated with the flexibility of local control and efforts to maximize participation as the price of freedom. You don't get to stand on the sidelines fretting that Dems are just misunderstood/Republicans are evil while Gunderson takes the hits.

    ROSE: Justice Mary Pat Gunderson

    THISTLE(S): Matt Schultz, Rekha Basu, Tom Miller, MD Dems.


  • Since

    Wendy Rosen is also a poster girl at TIR, it's only fair to point out that she identifies as a "recovering Republican" who switched parties "a few years ago." Her crime spree may have Republican roots.

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