Iowa voter citizenship checks on hold pending lawsuit

It’s time for an update on the legal conflict between Iowa Secretary of State Matt Schultz and voter rights advocates over Schultz’s efforts to remove “potential non-citizen registrants” from Iowa voter rolls. The American Civil Liberties Union of Iowa and the League of United Latin American Citizens of Iowa are suing to block the rule and won an important court victory yesterday. Follow me after the jump for background and details.

The conflict began during the summer of 2012, when Schultz sought to implement two emergency rules that would make it easier to remove Iowans from voter rolls. The ACLU of Iowa and LULAC of Iowa quickly filed a lawsuit, alleging “voter suppression” for various reasons. A Polk County district court judge issued a temporary injunction stopping the Secretary of State’s Office from implementing those rules before the 2012 general election.

Before that case could be considered on the legal merits, Schultz withdrew one of the rules being challenged, which would have altered procedures for filing a complaint to challenge someone else’s voting status. The secretary of state also proposed slightly altered the other rule, which involved checking Iowa voters against the Systematic Alien Verification Entitlement (SAVE) database administered by the U.S. Department of Homeland Security. From a November 28, 2012 press release:

The rules will be amended to clarify the database being referenced is the federal Department of Homeland Security database, and the process the Office will use to contact potential non-citizen registrants. Significantly, the length of time provided registrants to respond to a request from the Office of the Iowa Secretary of State has been extended from 14 to 30 days. There will also be a second request, with an additional 30 days to respond if no response is received from the first letter. Furthermore, any registrant receiving a letter from the Office requesting verification of citizenship status can request more time, as needed, to comply with the request.

You can read the full text of that proposed rule here (pdf). The procedure is still largely the same: if a registered Iowa voter’s citizenship status is questioned after officials check the SAVE database, letters will be sent to that voter, and the burden will be on him or her to prove citizenship.

Schultz abandoned efforts to enact the rule through emergency means. During the rulemaking period, several groups objected to the citizenship verification rule, including “the League of Women Voters of Iowa, Interfaith Alliance of Iowa, the Midwest Chapter of the American Friends Service Committee, and the Iowa Chapter of the National Association of Social Workers.” Nevertheless, the new rule went into effect in March 2013.

The ACLU of Iowa and LULAC immediately renewed their lawsuit, charging that the rule would still “wrongly restrict voting by qualified Iowans.” The rule allows the Secretary of State’s Office to use federal databases to generate a list of potential non-citizens, who are then contacted and forced to prove their citizenship in order to stay on the voter rolls. The ACLU and LULAC contend that

the databases contain numerous points of error in information, were never designed to cross-check voters, contain insufficient data to do so comprehensively, and put the burden on voters to prove their citizenship if they are identified, rightly or wrongly. Even the federal government agency that runs the SAVE databases recommended against using it to cross-check voters. Obtaining proof of citizenship to correct errors in the SAVE system can cost voters hundreds of dollars, in-person interviews with the federal government, and lengthy delays. Obtaining certificates of naturalization for the case of a new U.S. citizen, for example, can take six months to a year and cost hundreds of dollars. […]

The ACLU and LULAC say that the Secretary of State was never authorized by the Iowa legislature to put his Voter Removal Rule forward, and that it will erroneously deprive qualified citizens in Iowa of their right to vote. The ACLU and LULAC cite problems with running the registered voter lists through the federal SAVE system, as well as a lack of procedural checks to protect voters once they are identified.

When the rule went into effect, Schultz did not have access to the federal database, but his office and the U.S. Department of Homeland Security reached an agreement (pdf) in August to allow the Secretary of State’s Office to use the Systematic Alien Verification for Entitlements (SAVE) Program.

Meanwhile, the Iowa Attorney General’s Office, defending Schultz, failed to convince Polk County District Court Judge Scott Rosenberg to dismiss the lawsuit filed by the ACLU and LULAC. The litigants have asked the court to block the rule permanently. Judge Rosenberg issued a temporary injunction yesterday that will prevent Schultz from implementing the rule until the case can be considered next year. Jason Noble reported for the Des Moines Register,

“Iowa voters should take heart, because the court order today will prevent the Secretary of State from using a flawed and unreliable system to purge voters or otherwise intimidate them while the case moves forward,” ACLU of Iowa Executive Director Ben Stone said.

In a statement, Schultz said his office was “disappointed” by the order, but would abide by it.

“This is just a temporary order and we look forward to having a final resolution after the hearing scheduled in March,” Schultz said in the prepared statement. “We believe that the rule provides safeguards to protect the voting process and I will continue fighting to ensure the integrity of Iowa’s election system in common-sense ways.”

The Register posted Judge Rosenberg’s eight-page ruling. He denied the ACLU’s and LULAC’s request for summary judgment on Schultz’s authority to promulgate this rule, because “summary judgment is available in judicial review only when the facts of the case are not in dispute. […] While the facts regarding Schultz’s statutory authority are undisputed, other facts of the case remain in dispute.”

Explaining his decision to grant a temporary injunction, Judge Rosenberg referred to last year’s ruling by District Court Judge Mary Pat Gunderson. Rosenberg wrote,

This Court previously stayed implementation of the emergency rules, finding the Petitioners will suffer irreparable injury if the temporary injunction is not granted, other parties will not be harmed by the temporary injunction, and the public interest supports the temporary injunction. […] While Schultz amended the permanent version of Rule 721-28.5, the permanent and emergency versions follow the same basic procedure to identify and remove registered voters. Therefore, permanent Rule 721-28.5 presents many of the same issues as its emergency counterpart […].

The judge also referred to “the likelihood the Petitioners will prevail on the merits” when the district court considers the case next year. Because Iowa “statutes and case law do not present clear answers” to questions about Schultz’s authority to promulgate rules on removing voters from rolls, there is “a sufficient likelihood” the ACLU and LULAC will eventually prevail on the merits. Judge Rosenberg emphasized that his order of a temporary injunction “is not a determination on the merits of the Petitioners’ claims.”

I have no idea how the court will eventually rule on Schultz’s authority to issue this rule without legislative action. However, I suspect the ACLU and LULAC will be able to convince the court that the rule would likely intimidate and potentially disenfranchise eligible voters.

The rule in question allows Schultz’s office to cross reference self-identified non-citizens on voter registration rolls with the Systematic Alien Verification for Entitlements (SAVE) program, which the Department of Homeland Security operates. The SAVE program retains information on immigrants in the country on a temporary visa. If a non-citizen on the SAVE list is also listed as a registered voter a letter is sent to the registrant telling him or her that he or she might be illegally registered to vote. If the voter does not respond to that first letter, a second letter is sent reminding “the individual that registering to vote without citizenship is a felony,” according to Schultz’s office. After the second letter a voter might have to appear before a hearing to present evidence on voter eligibility.

“If the person cannot prove citizenship after this process, the office will forward the information to the county and after their registration has been challenged, the county auditor must hold a hearing to determine the eligibility of the voter,” also according to Schultz’s office. […]

The flaw in Schultz’s system, The Ohio State University Moritz College of Law Professor Daniel Tokaji said to TPM on Thursday, is that the SAVE program was not designed for keeping track of legal voters. Tokaji stressed that he had not examined the case closely but said that the type of cross-referencing Schultz wants to do under the rule creates the possibility that legal voters are mistakenly purged from voter rolls.

“There are just a lot of mistakes in these databases including voter registration rolls including mistyped addresses” or other basic information, Tokaji said.

Any relevant comments are welcome in this thread.

P.S. Democratic candidate for secretary of state Brad Anderson has hammered Schultz on this issue, saying, “If one single voter feels intimidated or one single voter feels disenfranchised, then you are not doing your job.” Anderson argues that Iowa “can do better by modernizing the office and ensuring election integrity without disenfranchising any eligible Iowa voters.”

  • Schultz's position:

    Identified voters are considered guilty until they prove their innocence.

    According to the Register article, Schultz is in Switzerland attending a meeting and visiting a spa and mineral baths.

    • that's why

      I think ACLU and LULAC will prevail when the court considers this rule on the merits. It’s not hard to construct a scenario where a lawfully registered voter could show up on this SAVE database, either before they became naturalized citizens or simply because they have similar names.

  • fraud

    “If one single voter feels intimidated or one single voter feels disenfranchised, then you are not doing your job.”

    But allowing 1 single case of voter fraud is ok?

    • voter fraud is minimal to nonexistent

      in Iowa. To “solve” this problem, Schultz would potentially deprive many people of their fundamental constitutional right to vote. There are other ways to address voter fraud that do not disenfranchise anyone.

      • more information

        That’s not particularly helpful. What other ways can fraud be prevented?

        DesMoinesDem, are you aware that your Obamacare… oh sorry, the “Affordable Care Act”… requires its participants to be US citizens and that citizenship is verified by the same SAVE database that Schultz wants to use?

        http://www.nilc.org/immigrants…

        And yet I haven’t heard anyone worried someone might be intimidated or disenfranchised from purchasing health care. But then again they would probably be intimidated by the cost.  

        Seriously, though, you can’t have it both ways.

        • not the same thing at all

          True, “Obamacare” subsidies are only available to citizens. Schultz is talking about sending people letters, telling them they may be registered illegally and need to respond within a short time frame to prove they have the right to vote.

          No one who applies for Obamacare subsidies is going to get a threatening letter that must be answered within 30 days.

        • also

          receiving government subsidies to buy health insurance is not a fundamental constitutional right guaranteed to citizens. But the right to vote is.

          I don’t think Schultz will win when the court considers the merits.

          • response

            A “threatening” letter…. ha!

            The right to vote is a cherished right that should be protected.  If you are not a citizen you should not vote… not even one vote.  The idea that people will be intimidated by a letter asking to prove their citizenship is nonsensical.

            As far as your constitutional argument goes, we all have a constitutional right to bear arms yet we have to jump through government hoops to purchase or carry handguns (which by the way I support).  I don’t recall anyone being concerned over intimidating potential gun owners.

            • Analogy based on failed understanding of Con law

              Juty, yes, both baring arms and voting are constitutional rights, but that doesn’t mean you can draw apples to apples comparisons like that.  To limit one’s constitutional rights, the state has to show that there is a compelling state interest addressed and the means presented are the least restrictive means to achieve that interest.

              With guns, there is obviously a compelling state interest in the safety of its citizens, and we’ve determined that waiting periods, etc. are the least restrictive means to achieve that interest.

              With voting, there is a compelling interest in ensuring that only eligible citizens vote, justifying the means that we have in place now (check at point of registration, ability of parties and campaigns to challenge votes, etc).  To put in more restrictive means, the SOS is going to have to show that what he wants to do is the least restrictive means, i.e. that what we have now is not successful in preventing fraud above some threshold, i.e. that fraud is a current problem.

              No offense, but your analogy is just a naive cheap shot.  Further, since your position has no limiting principle, it would logically lead to only one person per relevant district being able to vote.

              If voter intimidation is nonsensical to you, focus on the real costs.  Would it be okay if the state made everyone pay a couple hundred dollars to vote?  If no, why would it be okay for the state to just make a bunch of people pay a couple hundred dollars to vote, especially without showing that that bunch leads to fraudulent votes?

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