Three paths to expanding felon voting rights in Iowa

A week ago today, four Iowa Supreme Court justices upheld the lifetime ban on voting for Iowans convicted of all felonies, which are defined as “infamous crimes” under a 1994 state law. Chief Justice Mark Cady’s opinion in Griffin v. Pate and three dissents are available here; Bleeding Heartland posted key excerpts here.

A decision in Kelli Jo Griffin’s favor could have made tens of thousands of Iowans newly eligible to vote in this year’s presidential election. Instead, Iowa will likely retain its place as one of the most restrictive states on felon voting for years.

In theory, those who have completed sentences can apply to have Governor Terry Branstad restore their voting rights. Griffin plans to do so, and I expect Branstad to make a big show of approving her application. In practice, though, that option will be available only to a small minority of those affected by the governor’s January 2011 executive order. During the first five years the new policy was in effect, less than two-tenths of 1 percent of disenfranchised felons managed to regain the right to vote, an average of fewer than 20 people per year.

I am awaiting information from the governor’s office on restoration numbers since the latest “streamlining” of the official form in April, but I don’t expect the number of applicants ever to become more than a trickle. The financial and other barriers will remain too great.

Even if Branstad started receiving substantially more applications and approved them at a rate of 20 per week–unlikely since this work already occupies “meaningful amounts of time every day” for the governor’s staff–only about 1,000 people annually would be able to regain their voting rights. That’s less than 2 percent of the estimated 57,000 Iowans who have been disenfranchised since January 2011. Thousands more join their ranks every year. So much for an “efficient and convenient” restoration process.

Three paths are available to bring Iowa in line with how most states approach voting rights for people with felony convictions.

Change the law.

Article II, section 5 of Iowa’s constitution states that “a person convicted of any infamous crime shall not be entitled to the privilege of an elector.” But no clear definition of “infamous crime” emerged for more than a century. Chief Justice Cady discussed the constitutional, legislative, judicial, and executive understandings of “infamy” throughout Iowa history on pages 14 through 31 of the majority opinion in Griffin.

A 1994 law defined all felonies as infamous crimes. That legislative intent was important for the four-justice majority in Griffin. From pages 38 through 40 of the opinion:

the public discourse in Iowa since the 1994 legislative enactment has essentially been limited to the issue of reinstating voting rights after a felon has discharged his or her sentence, as shown by the actions of our last three governors. No public action has been formally taken to limit the felonies considered to be infamous crimes.

In interpreting our constitution, we must confine our analysis to the history we have been given and the evidence and facts as they exist. At times, this required approach has allowed us to expand constitutional rights beyond what previously existed. See Varnum v. Brien, 763 N.W.2d 862, 883–84 (Iowa 2009) (finding same-sex and opposite-sex couples to be similarly situated for purposes of marriage laws). But these times occur when the evidence and understanding of today clearly supports the result. See id. at 889–96 (examining evidence regarding homosexuality, marriage, and children).

We observe some evidence from social science professionals and other experts that identify problems associated with the disenfranchisement of voters, including convicted felons. […] The amici curiae also raised concerns regarding the permanent nature of disenfranchisement under the constitution, our statutes, and the current administrative restoration process. This evidence, however, falls far short of identifying objective community standards of infamy and does not illuminate the meaning of infamous crimes today. It also does not carry the weight needed to undermine the legislative judgment expressed in 1994 to include all felonies as infamous crimes.

Defining constitutional terms is a job for the Iowa Supreme Court, not the legislature. However, the Griffin majority are indicating here that if elected officials approved a more restrictive definition of infamous crimes, the court would view such action as evidence of new “prevailing standards” in society. Judges have repeatedly cited evolving community standards to inform new understandings of terms like “cruel and unusual punishment.”

Democratic State Representative Mary Wolfe, who is also an criminal defense attorney, took up the call less than an hour after the court announced its ruling: “I’ve decided under Griffin majority IA Gen Assembly can redefine infamous crime as something other than all felonies so CHALLENGE ACCEPTED.” A few minutes later, she started seeking public input on the issue:

So, Iowa citizens, should Iowa Code be amended to redefine “infamous crime” as something other than ALL felonies, which would allow Iowans convicted of some felonies to vote? And if so, which categories of felonies should trigger lifetime disenfranchisement upon conviction? “Infamous” has been defined as something wicked, something abominable, something that shocks the conscience – do all felony drug offenses fall into that category? How about all felony theft offenses? How about OWI 3rd? Maybe definition of “infamous crimes” should be restricted to violent felonies? It’s a brave new world of possibilities, and I would greatly appreciate your input as we move forward.

Wolfe revealed her early thoughts about the right approach in a July 5 post on her excellent blog (emphasis in original):

I propose that the Iowa Legislature utilize our newly discovered legislative authority to drag Iowa’s felony disenfranchisement law into the 21st century, since I am confident that community standards have evolved over the past twenty years to the extent that the average Iowan no longer believes that every felony offense is so “infamous” as to justify a lifetime ban on voting. For example, possessing 1.5 ounces of marijuana without a tax stamp is a Class D felony, as is trespassing on property owned by a public utility, as is stealing a bicycle that costs more than $1,000 to replace; this illegal conduct is certainly not admirable, but I doubt the majority of Iowans would agree that a conviction for any of these crimes merits the permanent loss of a fundamental civil right.

Iowa’s criminal sentencing laws already appear to reflect a general consensus on the part of Iowa’s lawmakers (the elected representatives of Iowa’s citizens) that not all felonies rise to the level of infamy. Most non-violent felony offenses do not require a mandatory period of incarceration upon conviction, and many first time offenders convicted of non-violent felonies never spend a day in prison; they are allowed to live, work, pay taxes and raise families in our communities, as are felons serving a period of parole and felons who have discharged their sentences. It makes no sense and serves no purpose to deny these Iowans the right to participate in choosing the elected officials who will represent them at the local, state and federal level; felons who aren’t considered dangerous enough to require incarceration can pose little if any danger to the integrity of the ballot box.

Voting is a fundamental civil right, not a privilege, and under current law, thousands of Iowa citizens have been and will continue to be stripped of this right based on a statutory definition that I believe no longer accurately reflects Iowa values. The legislature has a duty to put a stop to this ongoing injustice as soon as possible; one simple way to do so would be to amend Iowa Code Section 39.3(8) so as to define “any infamous crime” as “any felony for which the person is currently serving a period of incarceration.” Whether this is the “best” definition, and/or whether there exists a general consensus that Iowa citizens who aren’t in prison should be allowed to vote, is certainly open to debate – but it’s a debate in which the Iowa Legislature should engage, and it’s one that will require input from Iowa citizens on a local and state level.

I wish Wolfe every success in her efforts to get fellow lawmakers behind this idea, or some similar way to reduce the number of people disenfranchised for life in Iowa. No reasonable person could argue that every crime on the list of class D felonies is so heinous that a citizen who has committed the act should never be allowed to vote again.

However sensible Wolfe’s proposal may appear, it probably will be dead on arrival unless Democrats win a majority in the Iowa House and retain their Iowa Senate majority in this November’s elections. Under the status quo, tens of thousands of Iowans, disproportionately lower-income and non-white, are barred from voting for life. That serves the interests of Republican politicians, though they will never admit publicly that felon voting restrictions are meant to disenfranchise people assumed to lean toward Democrats.

If the Iowa House and Senate approved a new definition of “infamous crimes,” I doubt Branstad would sign the bill. He and Lieutenant Governor Kim Reynolds have tried to justify their voting policy as a way to protect the interests of crime victims, even though many disenfranchised people committed crimes with no clear victim and were never ordered to make restitution payments. His office has not responded to my request for comment (sent more than two months ago) on why people who owe no restitution should not have their voting rights automatically restored.

Change the constitution.

The ACLU of Iowa, which brought the lawsuit on behalf of Kelli Jo Griffin, vowed to push for a constitutional amendment to alter language in Article II, section 5 stripping people convicted of “infamous crimes” of the “privilege of an elector.”

Today, justice was denied in a narrow 4-3 decision. But today’s decision serves as a call for movement by the people and our representatives for a long-overdue state constitutional amendment to right this profound wrong. Those of us who have a political voice must all act now on behalf of those whose voice has been silenced.

Thousands of Iowans, and disproportionately African-Americans, remain unable to vote or participate fully in their communities. […]

This is no way [to] run a democracy. Iowa remains of just one of three states that permanently banned all people with a felony conviction from voting. The state of affairs in Iowa goes against the trend of the nation. With this heartbreaking decision, Iowa remains one of just three states, along with Florida and Kentucky, that still impose permanent disenfranchisement. […]

we’ll start work starting today on a constitutional amendment so that finally, the thousands of Iowans who have completed their sentences can once again be full members of society and exercise their right to vote.

Amending the Iowa Constitution is a difficult process. Two separately-elected legislatures have to approve the amendment, so the proposal would need to get through the Iowa House and Senate in either 2017 or 2018, then again in either 2019 or 2020. Then the amendment would need the approval of voters statewide, which couldn’t happen before the 2020 general election.

State Representative Pam Jochum had to work for years to get lawmakers to approve a much less controversial amendment, to remove the word “idiot” from Article II, section 5. That proposal went nowhere the first several attempts and did not succeed until the text was altered to replace only the word idiot, leaving the “infamous crimes” phrasing alone.

Although I support the ACLU’s goal, a constitutional amendment on a volatile issue like this one seems like a non-starter.

Change the governor.

Justice Brent Appel predicted in his dissent from the Griffin majority (page 68), “those convicted of felonies who have fully served their sentences will have their rights subject to flip-flopping executive orders depending upon the political philosophy of the executive rather than upon a more stable legal regime.”

As soon as he could after being inaugurated in 2011, Branstad rescinded Governor Tom Vilsack’s 2005 executive order that had established an automatic process for restoring most felons’ voting rights. He will protect that policy while he remains in office. But the longest-serving governor in U.S. history probably will not seek another term in 2018. He has said he wants Reynolds to replace him.

If Iowans elect Reynolds or some other Republican to succeed Branstad, no change in felon voting policy is likely. On the other hand, a Democratic governor would probably restore Vilsack’s policy and do so much more quickly than any law could work its way through the legislature.

A “stable legal regime” would be preferable, certainly. But from where I’m sitting, only a new governor offers hope of bringing Iowa policy in line with the overwhelming majority of states, which allow people to vote if they have completed prison terms, probation, and/or parole.

Final note: a number of people have asked me for a theory on why Chief Justice Cady upheld the felon voting ban. His majority opinion in Griffin is at odds with how he viewed the 2014 Chiodo case. In his plurality opinion for that case, Cady wrote, “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,” going on to indicate that in his view, an infamous 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.”

No one but Cady can answer the question definitively, but I’m collecting my thoughts on the matter for a forthcoming post. Quick preview: I don’t think he changed his mind out of fear that he might not be retained in this November’s election.

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