Can Iowa fix flawed felon database before 2020 election?

Ten months after the Des Moines Register revealed that “Iowa’s flawed felon list has been disqualifying legitimate voters for years,” and five months after voting rights advocates warned that “Iowa’s voter list maintenance practices are arbitrary and unlawful,” Secretary of State Paul Pate announced an ambitious plan to clean up the felon database.

“The new steps to ensure the system’s accuracy include a manual review of all 90,000 files,” a November 20 news release announced. The goal is to complete the task before next year’s general election.

Several unanswered questions remain about the plan.

“I WANT TO ENSURE EVERY SINGLE FILE IS ACCURATE”

Jason Clayworth reported in January that more than two dozen Iowans’ ballots had been wrongly rejected since 2017 because the voters’ names “mistakenly appeared on the felon list the state circulates to county officials.” In addition, the Des Moines Register’s investigation found, “the state’s process for enforcing its felon ban is seriously flawed — and officials have known about systemic inaccuracies in its database of roughly 69,000 banned felons since at least 2012.”

The Register’s reporting inspired people at the Brennan Center for Justice at New York University’s School of Law to do some digging. Brennan Center counsel Eliza Sweren-Becker and League of Women Voters of Iowa president Terese Grant flagged more problems with Iowa’s voter lists in a letter they sent to Pate in June. As of August, he hadn’t responded.

But in recent months, Pate’s staff have been working on the issue. On November 20 the secretary of state announced “multi-tiered solutions” designed “to ensure the integrity of Iowa’s felon database.” From that news release:

The new steps to ensure the system’s accuracy include a manual review of all 90,000 files. Secretary Pate has repurposed existing staff for this project and will be bringing on additional staff soon. The goal is for the review to be completed prior to the November 3, 2020 general election.

“My team has put in countless hours to update the felon database, and many more hours of work are needed,” Secretary Pate said. “I want to ensure every single file is accurate. That is going to take a lot of time, energy and resources, but we will get it done.”

Secretary Pate is also working with the Iowa Judicial Branch to ensure information provided by the courts to the Secretary of State’s Office regarding felony convictions is accurate. This includes a six-step verification process. Three of those steps are new, and the others have been enhanced.

Another step Secretary Pate has taken is the introduction of a new administrative rule that clarifies the roles of the Iowa Judicial Branch, the Secretary of State’s Office and county auditors regarding the felon database. The rule was submitted to the State of Iowa’s Legislative Services Agency for review on Tuesday.

“We are improving our processes to make sure eligible voters are not deterred from casting ballots,” Secretary Pate said. “My staff is going to dig through every record, no matter how old, double and triple check the information with the courts, and make sure everything is correct. This is a team effort and we’ve asked the courts and all 99 county auditors to take the additional steps.”

Secretary Pate’s Office will utilize funds provided through the Help America Vote Act to pay for additional staff and review of the felon data.

“The bottom line is we repeatedly ask election officials to use the provisional ballot option if there is any doubt about a voter’s status. We don’t want any eligible voter to be disenfranchised,” Secretary Pate said.

Communications staff from the Secretary of State’s office did not respond to Bleeding Heartland’s follow-up questions seeking details on the new policy.

“THE SECRETARY OF STATE TOOK OUR CONCERNS SERIOUSLY”

The League of Women Voters of Iowa referred questions to the Brennan Center. Speaking by phone on November 21, Sweren-Becker confirmed she’d seen an early draft of the administrative rule and “had a number of conversations” with Pate’s staff about it.

“We believe our letter prompted the new proposed rule, and we think that it indicates at the very least that the secretary of state took our concerns seriously,” Sweren-Becker told me. She didn’t know details about the planned six-step verification process or how many staff will be assigned to review the database.

“We’re still assessing whether the new proposed rule and other policies that they have announced would address all of those concerns” about the accuracy of Iowa’s voter list, Sweren-Becker added. The rule will be subject to a public comment period after it is published sometime next month.

Is it realistic to think the felon list could be cleaned up in time for the November election? Sweren-Becker couldn’t speculate without knowing how many staff members will be working on the project or the process they will use.

ARE COUNTY ATTORNEYS ON BOARD?

Pate’s statement urging “election officials to use the provisional ballot option if there is any doubt about a voter’s status” caught my eye. Some Iowans have been criminally charged and prosecuted after casting ballots when they believed they were eligible to vote. One of them, Kelli Jo Griffin, was acquitted and later filed a lawsuit challenging Iowa’s felon disenfranchisement policy.

In some cases, Iowans faced criminal charges even though election workers had suggested they cast a provisional ballot after finding their name on the felon list. Meanwhile, several dozen Iowans who were ineligible to vote because of a felony conviction have cast ballots with no legal consequences.

Did the Pate or his staff communicate with county attorneys about plans to update the felon database? Did the Secretary of State’s office receive any assurances that Iowans casting a provisional ballot in good faith won’t be charged later?

Pate’s communications director didn’t respond to Bleeding Heartland’s inquiry, but Iowa County Attorneys Association executive director Tom Ferguson agreed to a telephone interview on November 22. Ferguson previously served as Black Hawk County attorney for 25 years and prosecuted eight people who voted illegally in the 2012 general election.

Ferguson said he had not heard about the administrative rule or the planned review of the database from Pate or his staff. He couldn’t say whether any county attorneys had been in the loop and had no information about the policy beyond what the November 20 news release mentioned.

No one reached out to Ferguson for assurances that Iowans won’t be prosecuted if they believe they were erroneously added to the felon list. He hadn’t heard of other county attorneys having those conversations but could not say with certainty they hadn’t occurred.

The Iowa County Attorneys Association has no official stance on this issue, Ferguson told me. While working on such cases in Black Hawk County, he learned that competing executive orders “made it very confusing for individuals” who had been convicted of felonies. (Governor Tom Vilsack established an automatic voting rights restoration process in 2005; Governor Terry Branstad restored the lifetime ban on voting after a felony conviction in 2011.)

Ferguson recalled prosecuting some Black Hawk County residents who had voted while on probation for subsequent felonies. They knew they had committed crimes, he noted. But he said his office didn’t charge people who were in “this murky area,” thinking they were covered by Vilsack’s order and unaware of Branstad’s order.

He would encourage county attorneys “to exercise caution and exercise their discretion” in this area, after examining the facts in each case. If people who were unsure about his legal status voted with a provisional ballot in 2020, Ferguson would not charge them, even if it was later determined that they were not eligible. The provisional ballot would be a factor mitigating against prosecution, because it shows the voter was “not trying to pull a fast one over.” But “each case would have to be looked at individually,” he emphasized.

I will update this post as needed, as more details emerge about the effort to bring Iowa’s voter list maintenance into compliance with federal and state laws.

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