Eight weeks ago, two voting rights organizations warned Secretary of State Paul Pate that “Iowa’s voter list maintenance practices are arbitrary and unlawful.” They offered to work with his staff to bring Iowa into compliance with federal and state law, Jason Clayworth reported for the Des Moines Register on August 7.
Pate didn’t even acknowledge their letter.
The Brennan Center for Justice at New York University’s School of Law studied Iowa’s voter list maintenance after the Register published a major investigation by Clayworth in March, showing that “Iowa’s flawed felon list has been disqualifying legitimate voters for years.” The same series also found that “whether someone who committed a felony out of state gets included in Iowa’s felon database appears little more than happenstance.”
The Brennan Center’s counsel Eliza Sweren-Becker and League of Women Voters of Iowa president Terese Grant wrote to Pate on June 13. The Register uploaded the full text of their letter and accompanying exhibits. Excerpts:
We write pursuant to 52 U.S.C. § 20510(b) on behalf of the Brennan Center for Justice at NYU School of Law and the League of Women Voters of Iowa to notify you that Iowa’s voter list maintenance practices for people disenfranchised because of felony convictions appear to violate Section 8 of the National Voter Registration Act of 1993 (“NVRA”) and Section 48A.30 of the Iowa Code.
The NVRA sets forth clear standards that States must meet when undertaking a program or activity to ensure the maintenance of an “accurate and current” voter registration roll for elections for federal office, including that such programs or activities must be “uniform [and] nondiscriminatory.”1 In addition, Iowa law requires that a voter’s registration be cancelled upon notice of the voter’s felony conviction and further requires that the county commissioner of elections send a notice of the cancellation to the registered voter.2
In violation of these federal and state laws, Iowa has reportedly removed voters from its rolls because of purported felony convictions, even though some of these voters had not been convicted of felonies and remained eligible to vote. As explained in further detail below, Iowa has allegedly failed to notify voters of the cancellation of their registrations due to purported felony convictions, in violation of state law.
The Brennan Center requested records from six large Iowa counties: Dallas, Black Hawk, Johnson, Linn, Polk, and Story.
These records reflect a practice of canceling voter registrations based on incorrect criminal history information. For example, in 2016, the Secretary of State’s Office restored 2,591 records that were improperly included in the state’s “felon database” and acknowledged ongoing uncertainty about criminal statuses.7
These records further indicate that at least three problems have caused Iowa’s unlawful removal of voters from the rolls. First, the Iowa Department of Corrections, Iowa courts, federal courts, and other states misidentify felony convictions when providing lists to county auditors.8 Second, the state has taken a decentralized approach—asking county officials to identify and correct errors arising from state lists—instead of stemming the flow of inaccurate information from the original sources.9 Third, counties are using weak criteria to compare those who have reportedly committed felonies with the list of eligible voters, resulting in false positive matches.
When Brennan Center representatives reached out to Pate’s staff about the problems they discovered,
Representatives of your office explained that the Secretary of State’s office is a merely a “conduit” for conviction information from clerks of court to county auditors, and stated that Iowa law does not require the Secretary of State’s office to verify conviction information before passing that information on to county auditors.11
However, federal law requires the Secretary of State to be more than a “pass through” for information from court clerks to county auditors. As “the chief state election official responsible for coordination of State responsibilities” under the NVRA,12 your office is responsible for voter list maintenance programs that ensure “an accurate and current voter registration roll” and that are “uniform and nondiscriminatory.”13 In addition, the Help America Vote Act requires the State, when removing names of ineligible voters, “to coordinate with State agency records on felony status[.]”14 Furthermore, Iowa Code Section 48A.30(d) directs the Secretary of State to “determine in which county the felon is registered to vote” and to notify county auditors of felony convictions.15 Iowa law, therefore, necessarily requires that, before passing information along to county auditors, the Secretary of State determine that: (a) the person identified by a clerk of court is the same person as the registered voter, and (b) the crime of conviction is, in fact, a felony.16
In other words, the Secretary of State may not abdicate the duty, imposed by both federal and Iowa law, to verify information provided by court clerks.
For the reasons identified above, Iowa’s voter list maintenance practices are arbitrary and unlawful.
The Brennan Center and League of Women voters asked Pate to take seven concrete steps to ensure Iowa complies with state and federal law, offering “to work with your office to develop a plan to resolve these issues.”
The groups weren’t seeking publicity. The Register obtained the letter “after it was inadvertently published with information intended for voter advocates,” Clayworth reported.
As of August 7, Pate had not responded to a letter sent to his office by e-mail and certified mail eight weeks earlier. The Secretary of State’s communications director Kevin Hall told Clayworth that his boss “was pursuing administrative rule changes that would require courts to provide proof of conviction documents anytime felonies are submitted for inclusion on the felon list.” But he “declined to share a copy” of the new rule, which is still in draft form. “It remained unclear Wednesday how comprehensive the proposed changes would be and whether they would address all seven steps outlined in the June 13 letter.”
Pate should have been working to solve this problem years ago. State officials have “have known about systemic inaccuracies in [Iowa’s] database of roughly 69,000 banned felons since at least 2012,” the Register reported in March.
The secretary of state should have prioritized this task after the Register’s investigation became public.
He should have welcomed assistance from nationally respected experts and sought their input on fixing what’s broken in time for the 2020 election.
Instead, he didn’t even write them back.
Maybe Pate bristled at this thorough assessment of his office’s failures. Maybe he holds a grudge because the Brennan Center opposes restrictive voter ID laws, and the League of Women Voters lobbied against the 2017 law Pate views as a signature achievement. Or maybe he and his staff are too incompetent to answer substantive mail promptly. None of those options would be a valid excuse.
I don’t know what’s worse: Pate’s disregard for Iowans who lost a fundamental right due to a flawed database, or his disregard for his obligation to follow the law.