Court puts four new Iowa voting restrictions on hold (updated)

A Polk County District Court has ordered that four voting restrictions Iowa Republicans enacted in 2017 will be on hold pending resolution of a lawsuit the League of United Latin American Citizens and Iowa State University student Taylor Blair filed in May. Plaintiffs had requested the temporary injunction, noting that the new law (House File 516) could disenfranchise eligible voters in various ways and would disproportionately harm Democrats, who are more likely to cast early ballots.

I enclose below the full text of Polk County District Court Judge Karen Romano’s July 24 ruling, along with key excerpts from the 25-page document. The temporary injunction applies to:

• signature matching requirements for absentee ballot requests;

• signature matching requirements on returned absentee ballot envelopes;

• portions of Iowa Code that shortened the early voting window from 40 to 29 days; and

• a requirement that absentee ballot applications include a voter verification number.

The court found plaintiffs were likely to succeed on the merits, because the restrictions would irreparably harm some voters, and the new burdens on the fundamental right to vote are not narrowly tailored to serve any compelling state interest.

In addition, the judge ordered Iowa Secretary of State Paul Pate not to put language on absentee ballot applications stating that absentee ballots “cannot be issued until ID number is provided,” and not to disseminate “Voter Ready” graphics or other materials that say Iowans “will be asked to show a form of valid identification when voting,” without also indicating that such ID “is not required to vote in 2018.”

The court found that current wording on materials produced by the Secretary of State’s office misleads voters and places “additional and unnecessary” obstacles before them. The likely result will be to discourage some eligible Iowans from requesting an absentee ballot or attempting to vote in person. “The State offers no justification for promulgating materials that seemingly only aim to promote an inaccurate depiction of current Iowa law.”

The Secretary of State’s office did not respond to my inquiry, and the Iowa Attorney General’s office is referring requests for comment to Pate’s staff.

Joe Henry, the leader of Iowa’s oldest Latino advocacy organization, told Bleeding Heartland,

LULAC has worked very hard in Iowa to build our membership and mobilize the Latino vote and we are grateful that Judge Romano made it clear that the state of Iowa should not restrict our right to vote in any form.

LULAC provided testimony and affidavits that helped proved a framework for the arguments put forth by our attorneys on July 6th in Polk County Court.

The Priorities USA Foundation is paying the plaintiffs’ costs in this lawsuit. That foundation’s chair Guy Cecil released this statement:

“We are pleased that Judge Romano has stopped the state from enforcing HF 516’s burdensome absentee voting restrictions and ordered Secretary of State Paul Pate to halt his deceptive advertising campaign around the state’s impending voter identification requirements. When eligible Iowa citizens cast their ballots this fall—in person or by mail—they should not be encumbered by the onerous and discriminatory restrictions contained in HF 516 or misled about the new ID requirements. Today’s ruling is just the first step to ensuring that every Iowan is able to exercise their fundamental right to vote.”

Pate’s Democratic challenger Deidre DeJear released this statement:

“Today is a step forward in the fight to defend your most fundamental right; our right to vote. The passage of HF 516 was a step backwards for Iowa. The law infringed on the rights of students, the elderly, people with disabilities, minorities and those living below the poverty line. Out on the road, I heard story after story from voters who don’t have an ID, aren’t mobile, or were unable to cast their ballots because of HF 516.

Paul Pate is the only Secretary of State to commission a voter ID law such as this – and now the courts have ordered to stop his misleading advertising campaign around the changes. This is a good day for all Iowa voters.

The court’s ruling today will make it easier for so many to cast their ballots this fall. I am proud of those who stood up to challenge this unnecessary and tedious law. One thing is clear: voters are making their voices heard in 2018, and that all starts at the ballot box. It is indeed, #TheYearOfTheVoter.”

Leigh Chapman, senior policy advisor for Jason Kander’s organization Let America Vote, had this to say about the court ruling “to enjoin Iowa’s unnecessary, bureaucratic and expensive voter suppression law”:

“Today’s decision is proof that the legal battle against voter suppression is extremely important and still winnable. The Polk County District Court today sided with Iowans who believe in free and fair elections and expect better from politicians who rewrote state law to restrict access to the ballot for purely political reasons.

“Iowa Secretary of State Paul Pate defended the law because he knows that trying to confuse Iowans about the identification they need to present in the 2018 election increases his chances of winning re-election. Let America Vote will continue to bring the fight against voter suppression into the court of public opinion, and we’ll hold Paul Pate accountable by working to defeat him in November.”

Let America Vote is running a robust voter mobilization effort in Iowa, with particular attention to the secretary of state race.

Full text of Polk County District Court Judge Karen Romano’s July 24 ruling:

From pages 4 and 5:

To prove that they are entitled to a temporary injunction, Plaintiffs must show that (1) in the absence of the injunction they will suffer irreparable harm, (2) they are likely to succeed on the merits, and (3) injunctive relief is warranted considering the circumstances confronting the parties and “balance[ing] the harm that a temporary injunction may prevent against the harm that may result from its issuance.” […]

A harm is irreparable when there is no other adequate remedy at law. […] “A restriction on the fundamental right to vote . . . constitutes irreparable injury.” Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).

Regarding the shortened window for early voting (pp. 5-6):

The Plaintiffs cite to data from the 2016 general election, which showed that between forty and 30 days prior to the election, 88,163 absentee ballots were cast and received. […] The State argues that the Plaintiffs cannot show irreparable harm from the decreased time period to cast absentee ballots, considering that more absentee ballots were cast in the June 2018 primary than any other primary in Iowa’s history. […]

The court does not find data from the June 2018 primary persuasive nor indicative of how the changed absentee voting period would affect voters in a general election. Voters in a primary election must be registered with a particular party, whereas in a general election there is no such requirement. Therefore, the voter pool is markedly different in a primary election versus a general election. Voters who cannot vote during the newly established time period to cast absentee ballots will suffer harm if the law continues to remain in effect. Based upon the number of voters who cast ballots during the time unavailable to cast ballots under HF 516 and the information provided by Professor Burden, the court finds that voters will be harmed if this shortened time frame continues to remain in effect for the 2018 election. Once such harm occurs, it cannot be repaired, as voters cannot go back and cast a ballot after the election is held. A voter disenfranchised by this change has no remedy. The Plaintiffs have proved that they will suffer irreparable harm if this provision of the law is not temporarily enjoined.

Regarding absentee voting signature matching requirements (pp. 6-8):

HF 516 allows county auditors to reject both applications for absentee ballots and absentee ballots themselves “if it appears to the commissioner that the signature on the application/envelope [respectively] has been signed by someone other than the registered voter, in comparing the signature on the application to the signature on record of the registered voter named on the application.” Iowa Code §§ 53.2(5); 53.18(3). If either the request or the return envelope are deemed defective due to mismatching signature, the commissioner is to notify the voter, but only if the ballot was received by 5:00 P.M. on the Saturday preceding the election. Id. §§ 53.2(3), 53.18(3). Thus, if a county auditor deems a ballot defective due to mismatching signature and the ballot was received after 5:00 P.M. on the Saturday preceding election, that voter’s vote will not be counted without notice to the voter. Id. 53.2.

Voters who are notified of a defect in their absentee ballot due to a signature mismatch have the ability to cure the defect by either requesting a new absentee ballot and returning it by the election day deadline or voting in person on election day. Id. § 53.18(3). Because voters must mail a request for an absentee ballot eleven days prior to an election, any voter who was not informed of the signature defect before this deadline will lose the opportunity to apply for an absentee ballot by mail. See id. §§ 53.2, 48A.9. However, a voter may request an absentee ballot in person at the commissioner’s office or any location designated by the commissioner up until the day before election day. See id. § 53.2. For voters who request to vote absentee due to an inability to vote in person, this may cause disenfranchisement.

The Plaintiffs presented a declaration by Dr. Linton Mohammed, a handwriting expert, who explained non-experts are more likely to conclude that two signatures do not match one another, and they are more likely to erroneously conclude that two signatures do not match. Mohammed Decl. ¶ 33. Dr. Mohammad also stated voters who are younger, older, or do not speak English as a first language are more likely to have their signatures rejected for failing to match. Id. at ¶ 31. The Plaintiffs note, in Iowa, these groups are more likely to vote for Democrats. Burden Decl. ¶ 67. Further, the Plaintiffs also point out that in the 2016 election, 9 percent of all absentee ballots case were received after Saturday at 5 P.M. Burden Decl. ¶ 60. Thus, any voter whose ballot is received after 5 P.M. on the Saturday before an election and deemed defective, correctly or not, will be disenfranchised.[…]

In response, the State again points to previous county-wide special elections held throughout the state and the June 2018 primary election in which the signature matching provision was in effect. The State notes the Plaintiffs have not identified a single individual whose vote was not counted because it was received after 5:00 P.M. on the Saturday before the election and contained a signature defect.2

Voters whose ballots are erroneously deemed defective under the signature matching provision of 516 will be harmed if the law is not temporarily enjoined, either because they will be required to overcome further obstacles in order to cast an absentee ballot, or in some cases, their ballot may not be counted at all. Based on sheer probability and the amount of absentee ballots previously received after the Saturday at 5 P.M. deadline, it is nearly certain at least one voter will be disenfranchised as a result of the handwriting matching provision. Once such harm occurs, it cannot be repaired, as voters cannot go back and cast a ballot after the election is held. The Plaintiffs have proved that they will suffer irreparable harm if this provision of the law is not temporarily enjoined.

Regarding the requirement to put a voter ID number on absentee ballot requests (pp. 8-9):

HF 516 now requires that a registered voter include their voter verification number on applications for absentee ballots. Iowa Code § 53.2(4)(a)(4). […] However, the same statute provides that “[i]f insufficient information has been provided, including the absence of a voter verification number, either on a prescribed form or on an application created by the applicant, the commissioner shall, by the best means available, obtain the additional necessaryinformation.” Id. § 53.2(4)(b). Nonetheless, the actual absentee ballot application form states that the voter verification number is required. Ex. G.

Plaintiffs argue that requiring registered voters to include their voter verification number on applications for absentee ballots dissuades voters from completing applications for absentee ballots, either because they do not know their voter verification number offhand or because they are reluctant to share the number on either the application or with a canvasser who is helping them complete an application. […] Plaintiffs also argue that all materials disseminated by the State that state that a voter verification number is required on all applications for absentee ballots is misleading and an inaccurate depiction of the law, considering a county auditor may supply that information on applications for absentee ballots pursuant to Iowa Code section 53.2(4)(b).

Under the law as it is written, a voter is and should be eligible to apply for an absentee ballot without providing a voter verification number. The evidence presented establishes that some voters are dissuaded from applying for absentee ballots if they are required to provide their voter identification number. Registered voters who do not request absentee ballots because they are led, by the State’s efforts, to believe they are unable to request an absentee ballot without providing a voter verification number will be harmed if this state action is not temporarily enjoined. This particularly affects registered voters who are unable to vote on election day or can otherwise only vote by absentee ballot, and it imposes an additional obstacle for voters to cast a ballot.

Regarding the state’s public education efforts (p.10):

HF 516 requires registered voters who are voting in person to present proof of identification beginning in 2019. Iowa Code § 49.78(1). This law is to go into effect in 2019. Id. Iowa Code section 49.78(2) outlines the types of permissible identification. For elections conducted in 2018, poll workers will ask voters for identification, but registered voters who do not present identification will be permitted to vote a regular ballot “upon signing an oath attesting to the voter’s identity.” Iowa Code § 49.78(8). […]

As part of the public education campaign, the Secretary of State developed a logo that depicts a list with checkmarks, consisting of: (1) register, (2) ID, and (3) vote. Ex. H; Ex. I; Ex. J. The Plaintiffs argue this may dissuade voters who do not have the requisite identification, but would be permitted to vote by signing an oath attesting to their identity, from voting. […]

Voters who do not possess a required form of identification, but would be eligible to vote by attesting to their identity, will be harmed if they are led by the efforts of the State to believe they are ineligible to vote. Such disenfranchisement is a certain and great harm. Once such harm occurs, it cannot be repaired, as voters cannot go back and cast a ballot after the election.

On why the new voting regulations should be subject to “strict scrutiny” (p.14):

The court finds, under the Iowa Constitution, it is well settled that voting is a fundamental right. Thus, any law imposing restrictions on exercising this fundamental right or state actions affecting this fundamental right, must be subject to strict scrutiny. The court finds that, when considering the number of Iowans who utilize absentee voting,4 the challenged provisions of HF 516 and the actions taken by the State in publicizing HF 516’s changes to Iowa’s voting procedures substantially and directly interfere with Iowans’ constitutional right to vote. Absent voters laws have been on the books in Iowa nearly a century. See Compiled Code of Iowa, Title IV, Ch. 9, §§ 521-534 (1919). The law has evolved over the last century but the constraints put on the right to vote absentee by the challenged provisions of HF 516 are a clear burden on the longstanding fundamental right to vote.

The State argues that a heightened standard of review will deter the Iowa Legislature from experimenting with different voting systems and regulations and expanding voters’ rights, as once the voters’ rights are expanded, any return to the status quo will be difficult to obtain if the law is subject to strict scrutiny analysis. This court does not find the argument persuasive. The legislature is not entitled to a limitless ability to regulate fundamental rights. This is true with all rights deemed fundamental under the Iowa Constitution.

Next, Judge Romano considered whether plaintiffs are likely to succeed on the merits when challenged provisions of the law are subjected to strict scrutiny. From her analysis of the shortened early voting window (pp. 15-16):

Iowans have had these extra eleven days to cast absentee ballots for over ten years, and the evidence shows that a significant amount of the electorate have utilized them. The court finds retracting eleven days, including two weekends, from the window of time to submit absentee ballots is a substantial burden on the fundamental right to vote.

The State can prevail by showing that shortening the time available to submit absentee votes by eleven days is narrowly tailored to serve a compelling government interest. The State argues it has a compelling interest in preserving the integrity of its elections, deterring and eliminating voter fraud, and ensuring all elections are fair. The court agrees this is indeed a compelling government interest. However, the State has not even attempted to explain how reducing the time frame for voters to cast absentee ballots will ensure fairness or preserve the integrity of Iowa’s elections. The State has not indicated the eleven extra days previously available to voters to cast absentee ballots negatively impacted the integrity or fairness of Iowa’s elections in any capacity. The law is not narrowly tailored to serve a compelling government interest.

On the signature verification requirements (pp. 16-18):

The signature matching provision provides no methods by which county auditors are to evaluate whether signatures match. As stated above, people who are not handwriting experts are more likely to erroneously conclude that two signatures do not match than are trained handwriting experts. […]

Voters whose ballots are erroneously deemed defective will have to overcome another obstacle to vote. Either they must submit a new request by mail, if time permits, and if not, they must go to the commissioner’s office in person to request a ballot or vote on election day. Voters often request to vote by absentee ballot because they are unable to vote in person on election day or because they are otherwise unable to request a ballot at the commissioner’s office. Burden Decl. ¶¶ 61–61. This may impose a heavy burden on a voter, or it may entirely disenfranchise them. Furthermore, refusing to allow voters whose absentee ballots are received after 5 P.M. on the Saturday preceding an election an opportunity to cure an alleged defect in their ballot not only substantially burdens their fundamental right to vote, it entirely eliminates it. Over 60,000 absentee ballots were received after the 5 P.M. deadline in the 2016 presidential election. If county auditors have unbridled discretion to reject ballots based on signatures they find do not match, and considering these analyses will be done by county officials with no official guidance or handwriting expertise, there is potential for erroneous determinations of a mismatch. This is a substantial burden on Iowans’ fundamental right to vote.

The State does not explicitly refer to a specific interest in allowing county auditors the ability to reject absentee ballot requests or returned absentee ballots based on mismatched signatures, but the court can surmise that the same interest in safeguarding elections and deterring and eliminating fraud apply. Again, the court finds protecting the integrity and fairness of elections is a compelling government interest. However, since this method is likely to substantially burden or eliminate more voters’ ability to exercise their right to vote, and the State has not pointed to any evidence that the State experiences any voter fraud whatsoever without such a system, the law is not narrowly tailored.

On requiring a voter identification number on absentee ballot requests (pp. 18-19):

The Plaintiffs argue the misleading information on the absentee ballot request form constitutes a substantial burden on the right to vote, because many people do not have their identification numbers readily available or are reluctant to share them with canvassers who are signing them up to request absentee ballots. […]

The State offers no justification for promulgating materials that seemingly only aim to promote an inaccurate depiction of current Iowa law. Likewise, the State does not offer a justification for requiring that an absentee ballot cannot be issued unless voters include their voter verification numbers on absentee ballot applications, even though county auditors are statutorily permitted to obtain this information and supplement applications accordingly. While the court can infer requiring voters to include their voter verification number on applications for absentee ballots may reduce administrative costs to some extent, this interest is not compelling. County auditors are able to ascertain whether individuals applying for absentee ballots are registered to vote, and they have done so successfully prior to the passing of HF 516. Voters are not required to supply a voter identification number to obtain an absentee ballot under Iowa law if the auditor can obtain the information by the best means available. Instructing voters they are required do so as a prerequisite to obtaining an absentee ballot is not narrowly tailored to serve any State interest. The effect of these efforts and the change on the absentee voter form harms voters and poses an additional and unnecessary obstacle in the way of exercising the right to vote. Furthermore, it has caused confusion among the electorate, state officials, and election volunteers.

On the state’s public education campaign (pp. 20-21):

The media promulgated by the State would clearly lead voters to believe that some form of identification is required to vote in an election in 2018. Leading voters to believe they will be unable to cast a ballot without displaying one of the permitted identification cards, contrary to the laws of the State, does not serve a compelling State interest, nor is it narrowly tailored to serve any compelling State interest if one did exist. The Plaintiffs are likely to succeed on the merits of their claim that the State’s public education efforts misleads voters by stating proof of identification is required to vote in elections in 2018, and thus unconstitutionally restricts the fundamental right to vote enumerated in Article II, section 1 of the Iowa Constitution.

On “balancing the harms” in deciding whether to issue a temporary injunction (pp. 21):

The Plaintiffs argue the State will not suffer any harm if the temporary injunction is put in place because the temporary injunction will merely restore the status quo of Iowa’s voting laws. The State asserts issuing the injunction will not restore the status quo, as HF 516 has been in place for all of 2018, and further, the State asserts it will be harmed because it has already invested substantial resources in retraining county officials and volunteers to comply with the new regulations. As stated above, the State has suggested no real threat to the integrity of Iowa’s voting system without the new regulations contained in HF 516, so aside from the costs of directing the county officials and volunteers to return to the procedures in place before HF 516 was in effect, the harm to the registered voters who may become disenfranchised or experience substantial obstacles in voting is greater than any harm to the State. Because the State has not presented any evidence that Iowa elections will be subject to fraud if the provisions in HF 516 do not go into effect, the harm Plaintiffs will suffer substantially outweighs any harm the State may suffer.

UPDATE: Pate said in a written statement on July 25,

I am disappointed to learn a temporary injunction was placed on some parts of Iowa’s Election Modernization and Integrity Act today. We will be appealing this decision to the Iowa Supreme Court immediately. Out-of-state dark money and Washington, D.C. lawyers have come to Iowa to try to overturn our election laws. The people of Iowa overwhelmingly support voter ID and their elected representatives enacted a law that makes it easy to vote, but hard to cheat. My office has worked diligently with organizations across the state, including the plaintiffs in this case, to inform all Iowans about the provisions of this new law. The plaintiffs have not shown a single Iowan has been disenfranchised by this bill.

On July 26, Deputy Commissioner of Elections Ken Kline told county auditors the should follow the law as written, because the temporary injunction would be set aside on appeal. Kline indicated the Secretary of State’s office was working with the Attorney General’s office on that advice.

Lynn Hicks responded by e-mail on behalf of the Iowa Attorney General’s office, “we are advising auditors that the injunction is in effect.” He confirmed the state “filed a request for expedited appeal and are hopeful it will be heard quickly and we will be successful.” According to Hicks, “no one from our office said the ruling will be set aside.”

SECOND UPDATE: Johnson County Auditor Travis Weipert released the following statement on July 27.

Johnson County will be complying with the temporary injunction. Specifically, our office:

• Will not engage in signature comparison for absentee ballot requests or absentee ballot affidavits
• Will not require a voter to include a voter identification number (Iowa driver’s license/non-operator ID or voter card PIN) on an absentee ballot request form
• Will accept and process absentee ballot request forms without ID numbers
• Will plan to begin in person early voting and mailing absentee ballots on September 27, 40 days before the general election
• Will inform voters that identification is not required to vote at the polls in 2018

Please note that some forms and printed materials still include “ID Required” references. Certain forms are approved by the Secretary of State’s Office and may not be altered by individual counties. If and when updated forms are provided for our use, we will immediately switch to the updated forms.

Given the ongoing litigation in this matter and the potential for future court rulings that may affect the injunction, we encourage people to voluntarily include their ID numbers on absentee ballot requests.

The Attorney General’s office and Secretary of State’s office issued a joint statement on July 27:

At all points in the LULAC lawsuit, the Office of the Iowa Secretary of State has rigidly followed the advice provided to them by the Attorney General’s Office.

The injunction is in effect, but the Attorney General’s Office has filed applications for appeal and an emergency stay of the district court order.

We’ll soon find out how the Iowa Supreme Court handles this case on appeal. I don’t see why they would lift the temporary injunction, given the potential for some eligible voters to suffer irreparable harm if their ballots are wrongly rejected this November (for instance by untrained elections officials who declare signatures to be a mismatch). On the other hand, no one suffers irreparable harm (losing a fundamental constitutional right) if certain provisions of the law are not in effect this fall.

Meanwhile, Gavin Aronsen reported for Iowa Informer,

On Wednesday, Pate doubled down in a campaign fundraising email, promising again to appeal his case to the state Supreme Court and slamming Romano as “an activist judge” who granted the injunction “in support of the [lawsuit’s] bogus assertions, despite the claimants’ inability to demonstrate a single case of voter disenfranchisement.” (A similar argument could be made against the voter ID law, whose ostensible purpose is to prevent voter fraud: Pate’s predecessor, Republican Matt Schultz, blew over $250,000 in federal funds meant to help improve access to the polls on a crusade to stamp out voter fraud that found virtually no evidence of it.)

Pate also attacked his 2018 Democratic challenger, Deidre DeJear, who celebrated the court’s decision as “a step forward in the fight to defend our most fundamental right.” In his email, Pate warned that efforts “to preserve the integrity of our elections” would likely be for naught if DeJear defeats him in November. “If I lose, Iowa’s advocate for fair and honest elections will be replaced by a liberal activist who will work to undo all of the progress we have made,” he said. “We can’t afford to let that happen.”

Top image: Logo for the “Voter Ready” materials produced by the Iowa Secretary of State’s office. A Polk County District Court enjoined the office from telling Iowans they will be asked to show voter ID in this year’s election without also noting that ID will not be required in 2018.

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