District court voids proposed rule on Iowa voter citizenship checks

Polk County District Court Judge Scott Rosenberg ruled yesterday that Iowa Secretary of State Matt Schultz overstepped his authority when he promulgated a rule designed to identify and remove suspected non-citizens from Iowa voter rolls. Schultz first tried to enact a similar rule using "emergency" procedures during the summer of 2012, but a different Polk County judge issued a temporary injunction preventing the rule from taking effect before the 2012 general election.

Schultz then proposed a different version of the rule (full text here) and enacted it using the normal rulemaking process. Several advocacy groups claimed the rules could intimidate and/or disenfranchise legitimate Iowa voters. The American Civil Liberties Union of Iowa and the Iowa League of United Latin American Citizens restarted their voter suppression lawsuit last March. In September, District Court Judge Rosenberg rejected Schultz's motion to dismiss the lawsuit, and in November, Rosenberg issued a temporary injunction preventing Schultz from implementing the rule before the court considered the merits of the case.

Yesterday Rosenberg found in favor of the plaintiffs, saying Schultz "lacked the statutory authority" to promulgate a rule allowing his office to use a federal database to check Iowa voters' citizenship status. He further found that there was no rational basis for concluding that the rule was within the delegated authority of the Iowa Secretary of State's office and ordered the respondent to pay legal costs. Schultz plans to appeal the ruling, which you can read in full at the Des Moines Register's website. I doubt the Iowa Supreme Court will overturn this ruling, because the excerpts I've posted below are convincing.

Side note: I suspect that Schultz expected this verdict, and the likely failure of this crusade was one among several factors that prompted him to bail out of his current position in order to run for Congress in the open third district.

UPDATE: Added some comments from the ACLU of Iowa below. It's worth noting that this ruling focused on the matter of Schultz's authority and did not settle the question of whether his procedure would have wrongfully intimidated eligible voters or deprived them of their voting rights.

The Des Moines Register posted Judge Rosenberg's eight-page ruling near the bottom of this screen.

The ACLU of Iowa and LULAC argued that Schultz:

(1) improperly promulgated emergency rules when no emergency existed, (2) exceeded his statutory authority by promulgating emergency and permanent rules affecting the voter registration list, and (3) violated the right to vote with the emergency and permanent rules.

The ruling Judge Rosenberg issued yesterday addressed only the second claim, "a purely legal question." The court did not rule on the first or third claims, which "involved factual disputes."

From page 3:

Rule 721-28.5 creates a procedure to identify and remove foreign nationals from the voter registration list. First, the voter registration list is compared to various state and federal databases of foreign nationals. Following this comparison, if a registered voter is suspected of being a foreign national, the Secretary of State subsequently accesses the Systematic Alien Verification Entitlement ("SAVE") program administered by the United States Department of Homeland Security to determine if the registered voter is a United States citizen. If the registered voter is confirmed not to be a United States Citizen, the Secretary of State notifies the county auditor who initiates the voter registration challenge process under Iowa Code sections 48A.1416. Rule 721-28.5 states that it is intended to implement Iowa Code sections 47.7 and 48A.

"To be valid, a rule adopted by an agency must be within the scope of powers delegated to it by statute." [...] "[T]he rule must not exceed or limit the scope of the authority granted by the enabling legislation." [...] In addition, the rule "cannot be inconsistent with either statutory language or legislative intent." [...] "An agency rule is presumed valid and the party challenging the rule has the burden to demonstrate that a "rational agency" could not conclude the rule was within its delegated authority."

On page 4, Judge Rosenberg noted that because the "right to vote is a fundamental right," any laws challenging the right to vote must be strictly construed. In addition, the Iowa Legislature has approved language in the Iowa Code stating that "a grant of rulemaking authority shall be construed narrowly." Pages 4 and 5 quote the section of Iowa Code listing six specific instances which justify canceling an Iowa voter's registration.

The Petitioners assert that the occurrences listed in 48A.30 are the exclusive events for which the Respondent may cancel a registered voter's registration. Therefore they argue that because lack of citizenship is not listed, the Respondent did not have the authority to promulgate a rule that compares the voter registration list with federal databases to find foreign nationals that are possibly registered to vote, and subsequently initiates proceedings to remove them from the registration list.

In addition, the Petitioners cite Iowa Code section 47.7(2)(a), which allows the Secretary of State to coordinate the voter registration list with other state databases, such as the Department of Transportation driver's license records and the judicial records of convicted felons. They argue that since the statute expressly granted the Respondent authority to compare the voter registration list to state databases but was silent on federal databases, the Respondent was not authorized to promulgate a rule to access federal databases to maintain the voter registration list.

Schultz's attorney argued that the Iowa Secretary of State had authority to issue the rule:

The Respondent, as the Iowa Secretary of State, serves as the State Commissioner of Elections, whose duties include "supervis[ing] the activities of the county commissioners of elections" and "prescrib[ing] uniform election practices and procedures." Iowa Code § 47.1(1). The Respondent also serves as the State Registrar of Voters, and "shall regulate the preparation, preservation, and maintenance of voter records." Id. § 47.7(1). In addition, the Respondent states that Iowa Code section 48A.30 is not the only mechanism provided by statute in which a registered voter may be removed from the voter registration list.

But the judge commented on page 7,

Since section 48A.14 authorizes a challenge to the right to vote, it should be strictly construed. [...] Based upon this construction, section 48A.14 authorizes a registered voter, in his or her individual capacity, to challenge the registration of another registered voter in the same county based on the six criteria listed in the statute. It does not create a mechanism for the Secretary of State in his official capacity or through his office to challenge a registered voter's registration. Therefore, the Court finds the Respondent derives no authority from section 48A.14 to promulgate Rule 721-28.5.

The Court also finds that that the Respondent does not have the authority to promulgate Rule 721-28.5 under Iowa Code section 48A.30. That section expressly lists six occurrences that mandate the cancellation of a registered voter's registration, none of which involve citizenship. It is a rule of statutory interpretation that "when the legislature expressly mentions one thing, it implies the exclusion of other things not specifically mentioned." [...] Since the section expressly mentions six cancellation occurrences, the omission of a citizenship provision implies that the Respondent is not authorized to promulgate a rule that cancels a registered voter's registration based upon that criterion. The same analysis applies to Iowa Code section 47.7(2)(a), which expressly grants the Respondent authority to compare the voter registration list to state databases, but does not mention federal databases.

UPDATE: From an e-mail blast the ACLU of Iowa sent to supporters:

Victory! Iowa Secretary of State's Voter Removal Rule Blocked by Judge

After nearly two years of litigation, the ACLU and LULAC have prevailed and stopped Matt Schultz's attempt to purge Iowa's voter registration list.

Yesterday a Polk County judge struck down a voter rule issued almost two years ago by Schultz. The rule set out a process for identifying and removing suspected non-citizens from Iowa's voter registration list, using a highly controversial, unreliable federal database never intended for that purpose.

The ruling was the culmination of almost two years of litigation by the ACLU of Iowa and the League of the United Latin American Citizens (LULAC) of Iowa concerning both temporary and permanent voting regulations by Schultz without any legislative authority.

Click here to read a Des Moines Register article about the victory.

The rule would have allowed the Secretary to send intimidating letters to those he thought might be non-citizens, warning them about being charged with a felony and requiring them to prove their citizenship to the satisfaction of the Secretary or else face challenge and removal from the rolls. The process would have relied on the incomplete and unreliable SAVE database, which was never designed to cross-check voters.

ACLU of Iowa Executive Director Ben Stone said, "We are celebrating this victory today along with our tremendous client in the case, the League of United Latin American Citizens of Iowa. LULAC demonstrated early on in the case the negative effect that the rules in question were having on Latinos and new U.S. citizen voters in Iowa.

"In addition to recognizing the dedicated work of our legal staff, we want to extend our enormous admiration and thanks on behalf of all Iowa voters to Joseph Glazebrook, who volunteered his time for nearly two years, providing stellar legal representation in this case. We also were joined in bringing the case by the legendary Laughlin McDonald of the national ACLU Voting Rights Project," Stone said.

The ACLU also had this to say in a statement to the media:

"The long-fought decision today affirms that the Secretary of State may not avoid the legislative process in executing the duties of his office," ACLU of Iowa Legal Director Rita Bettis said in a statement. "The SAVE database was not designed to provide an accurate, reliable, or complete check on the citizenship of registered voters, and its use for such was never approved by the Iowa General Assembly."

She added, "The right to vote is fundamental and should never be used as a divisive tool for political gain."

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