A three-way Democratic primary is assured in Iowa Senate district 17, as the Iowa Supreme Court announced this afternoon that it has affirmed a district court ruling on Tony Bisignano's eligibility to run for office. Rival candidate Ned Chiodo filed a lawsuit last month, saying Bisignano's recent aggravated misdemeanor conviction for second-offense OWI should be considered an "infamous crime." The Iowa Constitution disqualifies citizens convicted of "infamous crimes" from exercising the privileges of "electors."
Chief Justice Mark Cady wrote the plurality opinion, joined by Justices Daryl Hecht and Bruce Zager. Overturning Iowa Supreme Court precedents set in 1916 and 1957, the court ruled that "infamous crimes" cannot be interpreted to mean any crime punishable by a prison sentence, including aggravated misdemeanors. On the other hand, the court did not simply accept the 1994 law defining "infamous crimes" as felonies. Citing historical references including an 1839 Iowa territorial statute, the plurality argues that not all felonies are "infamous," and that the words had different meanings at the time the Iowa Constitution was adopted in the 1850s. It did not go on to define which felonies should be considered infamous crimes in the present context.
Justice Edward Mansfield wrote a concurring opinion, joined by Justice Thomas Waterman. The concurrence agrees that Bisignano retains his rights as an elector, because aggravated misdemeanors cannot be considered "infamous crimes." However, Mansfield would have accepted the bright-line definition from the 1994 state law, equating felonies with "infamous crimes." He warned that the plurality opinion would serve as a "welcome mat" for future litigation from felons claiming that they should be entitled to vote, because their convictions were not for "infamous crimes." On balance, I agree most with Mansfield's opinion.
Justice David Wiggins dissented, arguing that the court should not have rewritten "nearly one hundred years of caselaw." He would have found Bisignano ineligible to run for office under the longstanding precedent that "infamous crime" means any crime punishable by a prison sentence. Wiggins' dissenting opinion does not accept the 1994 law which defined "infamous crimes" as felonies, because interpreting the state Constitution is a job for the Iowa Supreme Court, not the state legislature.
Justice Brent Appel recused himself from this case.
The Iowa Supreme Court did not rule on Chiodo's separate claim that Attorney General Tom Miller should have recused himself from the panel that allowed Bisignano to remain on the ballot. Chiodo argued that Miller had a conflict of interest, because one of his employees, Assistant Attorney General Nathan Blake, is also seeking the Democratic nomination in Senate district 17.
You can read the Iowa Supreme Court's three opinions in this case here (pdf). After the jump I've enclosed summaries and excerpts from each opinion. I also included a statement from Bisignano hailing the ruling and announcing several more labor union endorsements.
One thing's for sure: today's ruling won't be the last attempt by the Iowa Supreme Court to clarify the definition of "infamous crimes."
UPDATE: Added Nathan Blake's comment below. SECOND UPDATE: Added more thoughts about the implications of this case.
Summary and excerpts from Chief Justice Mark Cady's plurality decision in Ned Chiodo vs the panel consisting of Secretary of State Matt Schultz, State Auditor Mary Mosiman, and Attorney General Tom Miller:
Cady noted that the three Iowa Supreme Court cases cited in Chiodo's appeal (two from 1916 and one from 1957) never "engaged in a textual analysis of the meaning of 'infamous crime" in article II, section 5 [of the Iowa Constitution]." He goes on to explain that the founders of the state constitution "knew the difference between the concepts of conviction and punishment" and used the modifier "infamous" to describe a type of crime--not a type of punishment. Oregon's state constitution deprives citizens of elector privileges "upon conviction of any crime which is punishable by imprisonment in the penitentiary," but Iowa's does not. The plurality ruling thus overrules the previous case law, on which Chiodo's case relies.
The ruling then goes on to analyze whether a second offense OWI should be considered an "infamous crime" by different standards. The Iowa legislature defined "infamous crimes" as state or federal felonies, but Cady cautioned, "While the legislture may help provide meaning to the constitution by defining undefined words and phrases, the definition provided by our legislature itself must be constitutional." (For instance, lawmakers cannot define any kind of bill as an appropriations bill, regardless of whether that bill spends money.)
The felony-misdemeanor distinction does offer a clean bright-line rule. The benefits of such a rule are obvious, and the allure is tempting. Yet, our role is to interpret our constitution by using the language found in the constitution [...] If the words of the constitution do not support a bright0line rule, neither can we. Additionally, we recognize that we are dealing with a constitutional provision that disqualifies persons from voting. Ease of application does not justify a rule that disenfranchises otherwise eligible voters.
A review of article II of our constitution reveals the framers clearly understood that an "infamous crime" and a "felony" had different meanings." [...] As with our reasoning dispensing with the infamous-punishment test, if our founders intended the infamous crimes clause to mean all felony crimes, we must presume they would have used the word "felony" instead of the phrase "infamous crime."
Cady then discussed 19th-century definitions of the word "infamous," including this passage from a law the Iowa territorial legislature adopted in 1839.
Each and every person in this Territory who may hereafter be convicted of the crime of rape, kidnapping, wilful [sic] and corrupt perjury, arson, burglary, robbery, sodomy, or the crime against nature, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust, or profit, of voting at any election, of serving as a juror, and of giving testimony in this Territory.
Cady then explores how other state courts have defined infamous crimes, and concludes,
Considering the crime at the center of this case, we need not conclusively articulate a precise definition of "infamous crime" at this time. We only conclude that the crime must be classified as particularly serious, and it must be a crime that reveals that voters who commit the crime would tend to undermine the process of democratic governance through elections. [...]
Throughout our history, we have separated the seriousness of crimes by felony and misdemeanor designations. Crimes classified as felonies are serious offenses and misdemeanors are less serious. Within this framework, "infamous crime[s]," in light of its meaning throughout history, would at most extend to the area of serious crimes occupied by felonies. The concept of infamous crime is inconsistent with the concept of misdemeanor crime. It conveys a societal judgment not present in a misdemeanor, especially as it relates to the concept of disenfranchisement. [...] This, an infamous crime first must be a crime classified as a felony. As a misdemeanor crime, OWI, second offense, is not an "infamous crime" under article II, section 5."
It will be prudent for us to develop a more precise test that distinguishes between felony crimes and infamous crimes within the regulatory purposes of article II, section 5 when the facts of the case provide us with the ability and perspective to better understand the needed contours of the test. This case does not. OWI, second offense, is a crime that has never been considered by our legislature to be an infamous crime. It is not aligned in any way with those crimes designated by the legislature in 1839 as infamous. It is viewed by our legislature as a misdemeanor crime. It is a crime that does not require specific criminal intent and lacks a nexus to preserving the integrity of the election process. [...]
Our decision today is limited. It does not render the legislative definition of an "infamous crime" under Iowa Code section 39.3(8) unconstitutional. We only hold OWI, second offense, is not an "infamous crime" under article II, section 5, and leave it for future cases to decide which felonies might fall within the meaning of "infamous crime[s]" that disqualify Iowans from voting.
Cady's decision raises many questions about how the court might distinguish felonies from "infamous crimes" in the future. Justice Edward Mansfield found that problematic. From his special concurrence:
While I agree that Anthony Bisignano should not be disqualified from running for state senate, I cannot join the plurality opinion. I agree with the Panel, the district court, and Iowa's elected representatives that felonies and only felonies are "infamous crimes" under article II, section 5 of the Iowa Constitution.
As the dissent correctly points out, the plurality throws out nearly a hundred years of this court's precedents. Yet what is its replacement? That is hard to tell. Lacking a sound conceptual floor for its opinion, or a clear test, I think the plurality has unnecessarily introduced uncertainty and invited future litigation over voting rights. For example, I anticipate we will now see right-to-vote lawsuits from current prison inmates. [...]
The plurality's approach to whether a crime is "infamous" is an odd mix of half-hearted originalism and excessive fealty to a court decision from Indiana. [...]
My colleagues here largely track Snyder [the Indiana decision] but back off from fully embracing it. Thus, the plurality does not reach Snyder's ultimate conclusion that violent serious felonies like murder and kidnapping cannot disqualify a person from voting. But the plurality's quasi-Snyder jurisprudence has multiple problems as applied to Iowa. [...]
I would grant that the plurality has done a good job of saying what the legal standard for disqualification isn't. It is not conviction of a felony, conviction of a misdemeanor, or conviction of a crime with the potential for incarceration in a penitentiary. However, other than the indeterminate language I've quoted above, the plurality offers no further guidance as to what the standard is. As I have already argued, this standard is essentially no standard at all and will lead to more voting and ballot cases as we sort out the implications of today's ruling.
Mansfield goes on to explain why he would decide the case by "holding that our constitution, in its current form, disqualifies felons and only felons from voting and holding public office."
Justice David Wiggins took only a little more than three pages to lay out his dissenting opinion. He does not believe the Iowa Supreme Court should overturn previous case law on "infamous crimes." He argues that state lawmakers knew the constitutional definition of "infamous crime" when they created the category of aggravated misdemeanors, punishable by time in prison. "Thus, by conscious choice, the legislature made an aggravated misdemeanor an infamous crime."
Wiggins agrees with the plurality opinion in one respect: "the legislature cannot write a constitutional definition of 'infamous crime' by its enactment of Iowa Code section 39.3(8) (2013). The legislature cannot disqualify a voter by defining 'infamous crime" under our constitutional scheme because the constitution defines who is and who is not an eligible elector. [...] The plurality should not use the legislature's pronouncement in section 39.3(8) to control our constitutional duty to interpret the Iowa Constitution."
This part of Wiggins' dissent struck me as strange:
Second, the factors enumerated by the plurality are so imprecise that a citizen of this state who has committed a crime has no idea as to whether he or she is eligible to vote. [...] This uncertainty will keep many qualified voters from the polls for fear of prosecution for voter fraud.
Finally, our election officials will have the same problems as our citizens in determining who can ad cannot vote. This uncertainty will lead to greater election day problems and the casting of an inordinate amount of provisional ballots.
Why is Wiggins worried about uncertainty leading to more confused voters and more provisional ballots, but not worried that including aggravated misdemeanors as "infamous crimes" could disenfranchise an estimated 35,000 to 50,000 Iowans?
Tony Bisignano campaign press release, April 15:
***CANDIDATE TONY BISIGINANO'S RESPONSE TO IOWA SUPREME COURT RULING
AND ANNOUNCEMENT OF NEW LABOR ENDORSEMENTS***
Des Moines- Today the Iowa Supreme Court denied the final appeal of
Ned Chiodo on Tony Bisignano's eligibility to run for the Iowa State
Senate. Bisignano had the following to say in response:
"I am pleased by the decision of the Supreme Court. This will protect
the voting rights of 50,000 Iowans. We expected this ruling, and I
have been campaigning every day in the district, talking to voters
about the real issues affecting working families.
Ned Chiodo would rather risk the voting rights of 50,000 Iowans than
talk about the issues with working people. "Negative Ned" will
continue to only focus on attacking me. The people I speak with every
day are not concerned about negative personal attacks. They are
concerned with educating their children, finding quality jobs, and
taking care of their parents. The people of this district know that I
will represent them at the State Capitol. Ned Chiodo will not. He
represented corporations over working families, time and time again as
a corporate lobbyist for almost 30 years.
"I am also excited to announce the endorsements of several unions that
represent the working people of Des Moines that keep us safe: the
three labor unions of the Des Moines Police, the Des Moines
Firefighters, and the Polk County employees have all recently endorsed
Tony Bisignano has received endorsements from the Central Iowa
Building Trades, AFSCME Iowa Council 61, Teamsters 238, Des Moines
Police Local 10, Des Moines Firefighters Local 4, and AFSCME 68 Polk
UPDATE: Nathan Blake, the third Democratic candidate registered in Senate district 17, released this comment on April 15:
Now that the ballot is set, we can get back to focusing on the issues that matter to working families: good jobs, great schools, safe streets, and clean drinking water. We need a government that works for all of us, not just special interests, and that's what I will be fighting for in the Iowa Senate.
SECOND UPDATE: I was among those who criticized Ned Chiodo for putting the voting rights of thousands at risk in order to knock a rival off the primary ballot. I never considered the opposite possibility: that Chiodo's challenge to Bisignano could indirectly lead to thousands of Iowans regaining their voting rights.
If Justice Appel agrees with the plurality's reasoning in this case, the Iowa Supreme Court may soon rule that (for instance) non-violent drug offenses cannot be considered "infamous." In that case, many thousands of Iowans disenfranchised by current law and by Governor Terry Branstad's 2011 executive order may become eligible to vote again.
THIRD UPDATE: In his post on the "most important case" of the Iowa Supreme Court's current term, Ryan Koopmans zeroes in on a different apart of Mansfield's opinion.
Unlike Chief Justice Cady, Justice Mansfield found it significant that the constitutional provision that the Court was dealing with (article II, section 5) was ratified in 2008, not 1857. The 1857 provision said that "No idiot, or insane person, or person convicted of any infamous crime" can be an elector. In 2006, the Iowa legislature proposed to repeal that provision and replace it with the one we have now, which says that "A person adjudged mentally incompetent to vote or a person convicted of any infamous crime" can't be an elector. That proposal passed the legislature in 2006 and 2007 (constitutional amendments must pass through two consecutive legislative sessions) and the Iowa voters ratified it in 2008.
Chief Justice Cady disregarded that amendment because the purpose was to merely delete the offensive language ("idiot" and "insane person") and thus he believed that the legislature wasn't focusing on the "infamous crime" phrase. But as Justice Mansfield noted, when the legislature voted twice to repeal the old provision and replace it, there was a 1994 statute on the books (which remains there today) that defined an infamous crime as a felony. So when the legislature approved the new amendment, Justice Mansfield reasoned, it must have believed that an "infamous crime" was a felony, and it's the belief of those legislators that governs-though their belief may be informed by what they thought the framers intended. "It would be absurd," Justice Mansfield wrote, "to suggest the legislature intended to approve a constitutional amendment that struck down its own law" that defined infamous crimes as felonies.
I suspect Cady is correct that Iowa lawmakers weren't focused on the "infamous crime" phrase in 2006 and 2007. During that period, Governor Tom Vilsack's executive order was in effect, allowing most felons to regain their voting rights after completing their prison terms. Perhaps state legislators weren't thinking ahead to a time when a felony conviction in Iowa would again lead to permanent disenfranchisement.
Speaking of which, I wonder whether Branstad would appoint Cady to the state's highest court if he had the chance to do that one over.
LATE UPDATE: Here's the plurality opinion, the special concurrence, and the dissent.