This afternoon's public hearing at the Iowa Secretary of State's office probably will not lead to any substantial revisions in the administrative rules proposed to implement Iowa's new election law. While the bill was working its way through the legislature, neither Secretary of State Paul Pate nor Republican lawmakers acknowledged research from other states, indicating voter ID and signature verification requirements would suppress voting by some eligible citizens, especially in certain groups.
Nevertheless, the record from today's hearing could become important in potential future court rulings on the law.
Gerry Hebert, one of the country's top experts on voting rights law, told an audience in Des Moines last week that testimony at public hearings has sometimes been useful in litigation on other states' voting restrictions. Speaking to Bleeding Heartland after that event, Hebert offered more specific suggestions on questions that would be helpful for citizens to ask today.
Hebert is the senior director on voting rights and redistricting for the non-partisan Campaign Legal Center. He has litigated cases in several states and frequently writes and speaks about the harmful and racially disparate impacts of voting restrictions.
Pate has done as little as possible to publicize today's hearing (starting at 3:00 pm at the Secretary of State’s office, Lucas State Office Building first floor, 321 East 12th Street in Des Moines). I have seen no press releases or mentions on Pate's social media feeds. To satisfy requirements of Iowa's open meetings law, announcements of the hearing were buried in August 30 documents containing draft administrative rules.
Click here for background on those rules and to read about concerns already raised by eight advocacy groups: Iowa-Nebraska NAACP, League of Women Voters of Iowa, League of United Latin American Citizens of Iowa, Disability Rights Iowa, One Iowa Action, Interfaith Alliance of Iowa, Iowa Developmental Disabilities Council, and the American Civil Liberties Union of Iowa.
Hebert and Jason Kander of Let America Vote spoke at an October 10 discussion at Drake University, organized by the Iowa Lawyers Chapter of the American Constitution Society. During the Q & A, an audience member asked how an ordinary person should approach the upcoming public hearing. Hebert replied,
Well, you know, if there is a subsequent lawsuit filed, oftentimes the record that's used to judge whether the ID [law] is going to be upheld or not are statements made by people at public hearings and statements made in the legislative debates.
So questions like, "Well, have you done a study as to who is impacted by this requirement?" Or, "What information do you have, what database do you have?" [...]
I would ask all kinds of questions about--to get the details, to get them talking about the difficulties, or the fact that they haven't done the requisite study to find out how many people are impacted by various provisions.
Hebert shared more advice in a brief interview with me later.
1. Before introducing the bill, did the Secretary of State's office conduct studies to determine how many Iowa registered voters lack the kind of ID that the law would require?
Pate's staff must have done some research on this angle. When he announced his plans in early January, weeks before draft legislation was published, the secretary of state admitted that about 7 percent of eligible Iowa voters don’t have a driver’s license. Talking points his office distributed to county auditors a few days later asserted, "about 140,000 registered voters" do not have drivers licenses. Further down the same page, that document referred to "150,000 active voters w/o state IDs."
By the end of January, Pate was telling journalists "his office has already identified the about 85,000 people in the state who are registered to vote but lack the necessary identification card. For those voters, his office plans to automatically send a voter ID, if the bill is enacted."
In Hebert's view, those who are able to speak at the hearing should try to get Pate or his staff on the record about how they arrived at those estimates. Why did the number of Iowans who would need additional ID drop from 140,000 or 150,000 people to just 85,000? (Some Democrats suspected the secretary of state was lowballing the projected cost of voter ID, so as not to give lawmakers sticker shock. At the time, falling revenue estimates had Republicans scrambling to agree on more than $100 million in spending cuts for the last five months of the 2017 fiscal year.)
2. What studies did you do to analyze how voter ID requirements would affect Asian Americans and Pacific Islanders?
I mentioned to Hebert that the thirteen-year-old Iowa Commission of Asian & Pacific Islander Affairs had never taken a position on pending legislation until this year, when members lobbied against Pate's voter ID bill. The leader of that body, a registered Republican, testified at a public hearing in the Iowa House. That's how worried commissioners were about the prospects of eligible voters being disenfranchised.
Hebert asked if the commission had submitted any written comments. Indeed, they released a position paper in early March, before the Iowa House or Senate had approved the bill. Excerpts:
Forty-eight percent (48%) of Asian American and Pacific Islander Iowans (AAPI) have limited English proficiency and 15.2% of Asian Americans and Pacific Islanders in Iowa live below the Federal Poverty Level (FPL).1 The combined effect of limited English proficiency, poverty and increased voter requirements called for in the current provisions of Division II in HSB 93 and SSB1193 may serve to impede access to the voting booth for many AAPI Iowans.
Many naturalized citizens (who are former refugees and immigrants) from the Asian American and Pacific Islander communities do not have the government issued photo identification required in HSB93 and SSB1163 as it is currently written.
Refugees and immigrants often do not actively seek a government issued ID beyond those required for their employment. Because they frequently work long and/or irregular hours in jobs with minimal or no paid leave, rely on public transportation, and are often living in poverty, this population must prioritize their resources to those needs that allow them to function in day-to-day life.
Many Asian American and Pacific Islander Iowans are also first time voters. Voter education about voting requirements is most important for those who are not familiar with the process and our state’s requirements. This bill does not provide for adequate education and outreach to new Iowans or new voters to inform them about election laws, requirements and responsibilities.
Hebert said someone should ask at the October 16 hearing what analysis was done regarding the position paper from the Commission of Asian & Pacific Islander Affairs. Ask if the Secretary of State's office has any documents or internal memos showing that they considered those issues. "What study did you do? [...] Did you do anything? And produce what you have. If they say we don't have anything, you can say, 'See, you didn't do anything.'"
I suspect Pate's staff conducted no research on how the bill would affect Asian Americans. Deputy Secretary of State Carol Olson e-mailed a "myths and facts" document to county auditors on January 12 containing this passage (emphasis in original):
MYTH: This proposal would suppress the vote of disabled, elderly, poor, minority, college students, etc.
FACT: Secretary Pate's Election Integrity Act would not suppress anyone from voting because all current and future registered voters already have the necessary identification or will AUTOMATICALLY receive a FREE voter identification card in the mail.
I never saw Pate release any data contradicting points raised by critics of his bill. He and his staff simply echoed the same line: "No eligible voter will be denied their right to vote by this legislation. I am adamant about that fact and will fight to ensure voters are not disenfranchised. "
3. Did you analyze how voter ID would affect African Americans?
Hebert's comments got me thinking about other potentially disparate impacts of voter ID. Daniel Zeno, policy counsel for the American Civil Liberties Union of Iowa, brought pertinent facts and figures to the table in February:
According the Brennan Center, nationally up to 25 percent of African-Americans don’t have a state issued photo ID.
In five Iowa counties, where almost 70 percent of African-American Iowans live, the rates of African Americans without a photo ID tracks that national number and is disproportionately high to the rates of white Iowans with a photo ID. Comparing data from the Iowa State Data Center and Commission on the Status of African-Americans with the Iowa DOT and U.S. Census, we know that in Black Hawk County, while African-Americans make up only 10 percent of voting age residents, they comprise 27 percent of voting age residents who lack an Iowa driver’s license or non-operator ID. In Scott County, they make up only 9 percent of voting age residents, but comprise 24 percent of those without the ID; in Polk County, they make up only 8 percent of voting age residents, but 21 percent of those without an ID; and in Linn and Johnson Counties, where African-Americans make up only 6 percent of all eligible voters, they make up 16 percent of those without the ID. Thus, Pate’s proposal would most certainly have a disproportionate impact on African-Americans in those counties.
Compounding the problem, studies have found that voter ID laws are enforced in a discriminatory way, with African-Americans being questioned about their IDs far more than white voters.
Zeno and Betty Andrews of the Iowa-Nebraska NAACP both testified about barriers for black voters at the Iowa House public hearing in March. Andrews characterized voter ID bills as "a reincarnated poll tax and literacy test designed to disproportionately suppress the voting numbers of people of color [...]."
It's worth getting the Secretary of State's office on the record: did they research the likely impact of voter ID on African Americans in Iowa? If they claim they did, ask them to produce the responsive documents or internal memos. If they admit they did not, that testimony could be cited in a future court case.
4. Did you analyze how voter ID would affect Latinos?
The League of United Latin American Citizens lobbied against Pate's bill, and Mitch Henry testified at the Iowa House public hearing on LULAC's behalf.
Someone should ask whether the Secretary of State's office tried to determine how many Latinos (either native-born citizens or naturalized) lack the proper ID, and whether the law provides for adequate outreach to those populations.
5. Did you analyze how voter ID would affect transgender Iowans?
The LGBTQ advocacy group One Iowa published a guest commentary at this site focusing on the special burdens that voter ID laws place on transgender people, most of whom do not have a photo ID that matches their gender identity. The group's executive director Daniel Hoffman-Zinnel went over the same points at the Iowa House public hearing. After Republican lawmakers approved the final version of Pate's bill, One Iowa said in a statement,
"Transgender Iowans will face unique challenges at the polls due to how difficult obtaining identity documents that accurately reflect their name and gender can be. In fact, new Iowa-specific data from the National Center for Transgender Equality indicates transgender Iowans would be impacted by this law even more than we initially thought. We are appalled that the Iowa Senate has chosen to make exercising the right to vote far more difficult and potentially dangerous for some of their constituents.”
According to Iowa-specific data from the National Center for Transgender Equality’s National Transgender Discrimination Survey, only 11% of respondents reported that all of their IDs had the name and gender they preferred, while 81% reported that none of their IDs had the name and gender they preferred. Additionally, 31% of transgender Iowans responding to the survey reported being verbally harassed, denied benefits or service, asked to leave, or assaulted when presenting identification that didn’t accurately reflect their name or gender, a situation transgender Iowans may find themselves in if HF 516 becomes law.
I doubt anyone on Pate's staff gave any serious consideration to those issues. Someone ought to get them on the record: can they produce any internal documents showing they researched and took steps to mitigate the impact of voter ID on the transgender community?
6. Did you analyze how voter ID would affect college students?
The student government presidents at Iowa's three state universities released a joint statement in early January condemning the voter ID plan. Excerpts:
Secretary Pate’s proposal would require all voters in Iowa to show voter identification, such as an Iowa driver’s license, when they vote. Our student IDs, which are issued by the state’s public universities, would not be an accepted form of voter ID under the current proposal. When each student is already equipped with a form of credible identification, it is unnecessary and burdensome to require them to jump through additional bureaucratic hoops to practice their fundamental right to vote. We know firsthand how difficult it is to get students registered to vote already — with frequent address changes and being introduced to the electoral process for the first time — the last thing students need is another barrier to their participation.
Furthermore, the proposal claims that students may receive a free voter ID card in the mail if they do not have a driver’s license, but these free IDs are only available to existing active voters. The majority of students are first-time voters and therefore would not receive the free ID. This problem is exacerbated for out-of-state students who do not have an Iowa driver’s license. This group of students would be effectively disenfranchised in Iowa if they were not permitted to receive the free ID under the proposed law.
As mentioned above, talking points distributed to county auditors in January dismissed as a "myth" the idea that voter ID would prevent any students from casting ballots. It's worth nailing down whether the Secretary of State's office can show they researched the issue, especially since most student IDs in Iowa don't currently have the expiration date the new law requires.
7. Did you analyze how many senior citizens lack a current ID? Related: what research informed the decision to exempt Iowans in assisted living facilities from the voter ID requirements?
Pate and his staff have repeatedly denied any senior citizens would be disenfranchised. But the AARP opposes voter ID laws because studies have shown large numbers of senior citizens do not have "a current, government-issued photo ID."
Again, the Secretary of State's office has contended free IDs will be mailed to everyone in that group. But Johnson County Auditor Travis Weipert warned in February,
a new ID that people will only use once every two or four years is likely to get lost.
"I know my 90-year-old grandma doesn’t have an ID anymore and she would end up with one of these cards and I know she would lose it," Weipert said.
Can Pate's staff demonstrate they researched these potential barriers?
Incidentally, several attorneys have told me they suspect it is unconstitutional for the state to require a senior citizen living at home to produce valid ID at the polling place but allow those in nursing homes to vote without one.
8. Did you study how poll workers could be trained to verify signatures, and/or how that requirement would affect senior citizens or people with disabilities?
Jasper County Auditor Dennis Parrott testified before the Iowa House State Government Committee in January about his concerns.
Parrott says a person’s signature on their voter registration could be a “useful” means of verification, but it will create “a terrible burden” for the state’s 9000 poll workers.
“Signatures change over time. I’ll bet yours has,” Parrott says. “They change with age. They change with health issues…and all sorts of things.”
At the Iowa House public hearing in March, John McCormally spoke about his 94-year-old grandmother in Burlington.
Twenty years ago she lost the use of her right arm and had to learn to write with her left. Her signature depends today on whether or not she’s having a good day or a bad day. You’re telling me that her franchise right is subject to the whim of a poll worker who is poorly-trained […]. That is not ok.
Someone should press the Secretary of State's office on what research informed the new law's signature verification provisions.
9. Did you analyze the cost and additional staff time needed to process thousands more provisional ballots?
Linda Murken spoke on behalf of the League of Women Voters at the Iowa House public hearing, drawing on several years of experience as a local elections official. She warned that Pate's bill "will just flood the system with provisional ballots."
Provisional ballots take time. They are complex, as I said. They should be reserved for the situations where we really need to know. We’re really looking at an identity issue. We really need to say no, we’re not just going to let you vote now, because you haven’t proved your identity. But doing this–somebody forgot their card at home, and they will, or they lost it, and they will, this just unnecessarily would flood the system.
Under Iowa law, provisional ballots are counted only if voters are able to bring documents verifying their identity to the county auditor's office soon after the election. (The new law gives affected voters until noon on the Monday after election day, rather than noon on the Thursday.)
Did anyone in Pate's office research how many eligible voters may be unable to meet that deadline, either for lack of transportation or ability to take time off work?
10. Did you study the impact of shortening the early voting window from 40 days to 29 days?
During our interview, Hebert suggested asking if anyone in the Secretary of State's office looked at how many Iowans cast ballots during the eleven early voting days that will no longer be available, beginning next year? "What were the justifications existing at the time, not the post-hoc rationalizations that they can come up with today?"
I explained that Pate's original bill did not change the early voting dates. Iowa Senate Republicans introduced that change, probably because a 29-day window would give Democrats two fewer weekends to chase absentee ballots.
In that case, Hebert said, someone should find out if Pate asked the GOP lawmakers what data they collected before amending the bill. "I would get him to say no. Get him to say that they didn't do any analysis on this."
11. Did you study how much the new requirements would increase wait times on election day?
John Deeth, who has worked in the Johnson County Elections Office for nearly two decades, explained here and here how the new law will make the line move more slowly at polling places. Reverend David Sickelka, board chair of the Interfaith Alliance of Iowa, touched on that problem during his remarks at the Iowa House public hearing.
Checking signatures and IDs will take time. So will forcing more voters to cast a provisional ballot. So will the elimination of straight-ticket voting. About a third of Iowa voters have filled in the "Democratic" or "Republican" oval at the top of the ballot in the past. Those people will now have to mark an oval for every office, which will be more time-consuming for everyone, especially anyone for whom writing is a physical challenge.
The document Pate's deputy sent to county auditors in January declared confidently,
MYTH: This proposal will make voting more difficult & slow down the process at the polls.
FACT: The Election Integrity Act streamlines voting processes on Election Day. Voter ID cards will be scanned at the polling places, which will expedite voter processing and bolster voter confidence.
Someone should ask the Secretary of State's office to produce memos or documents supporting that claim. More likely than not, they will have to admit that no one did any serious research on the matter.
12. What studies have you done on the cost of providing free voter IDs to all voters who will need one?
Hebert recommended pressing Pate for any documentation his office may have about the cost of voter ID. Did you do a cost study before rolling out the proposal? How did you arrive at the lower cost for sending free IDs to 85,000 people? What changed in the interim? "I would ask as many detailed questions about that as possible, because the one thing that they don't like to do is spend money, and they don't like to have to justify spending money. [...] Why are you enacting a law when we're in a budget crisis, that's going to cost taxpayers money?"
Weeks before draft legislation was published, Pate estimated a one-time cost of $600,000 to provide free voter IDs to the 150,000 Iowa voters who would need one. Within a few weeks, the Secretary of State's office was saying only 85,000 people would need a free voter ID. The non-partisan Legislative Services Agency's fiscal note on the initial draft bill attached a $200,120 price tag, including $85,000 for "Initial Voter Registration Card Costs."
How did the cost of an ID drop from $4 per voter to $1 per voter? What analysis backs up that estimate?
13. Can you produce a sample letter that will go out to Iowans who need a state-provided voter ID?
Hebert told me he suspected the state was not planning to send actual IDs to voters. Rather, they would send the 85,000 people an application they would need to return in order to obtain the free ID. I said the Secretary of State's office has assured me they will send the ID itself. "You ought to get one of those mailers," Hebert said. "You ought to ask him to produce a sample. [..] Show me the sample of what you're sending."
Getting such testimony on record would be useful, Hebert added, in case later--perhaps to save money--the state starts mailing applications for voter ID. Then critics could counter, "You represented that you were actually sending people IDs. You're not doing that at all."