Iowa SOS will need permission for future emergency election changes

Secretary of State Paul Pate will need approval from the Legislative Council in order to use his emergency powers to alter election procedures, under a bill Governor Kim Reynolds signed on June 25.

While Republicans have a majority on that legislative body, it’s not clear they would use that power to prevent Pate from repeating steps that led to record-breaking turnout for the June 2 primary.

WHAT THE NEW LAW DOES

In response to the novel coronavirus pandemic, Pate extended Iowa’s early voting period from 29 days to 40 days and mailed absentee ballot request forms to all registered voters. Roughly 80 percent of the 531,077 Iowans who cast ballots in this year’s primary voted by mail. (The previous state record for primary turnout was 449,490 in 1994.)

GOP State Senator Roby Smith, who has led the charge on numerous proposals to limit voting in Iowa, expressed his displeasure when legislators came back to work in early June. He introduced an expansive election bill, which among other things would have prohibited the secretary of state from mailing ballot request forms to any voter who did not request one.

The Iowa Senate approved Smith’s preferred version of House File 2486 on a mostly party-line vote, with two Republicans opposed.

House members removed most of the controversial provisions from Smith’s bill. What remained limited the powers of election officials in two ways.

First, the bill amends Iowa Code so that going forward, the secretary of state’s

decision to alter any conduct for an election using emergency powers must be approved by the legislative council. If the legislative council does not approve the secretary of state’s use of emergency powers to conduct an election, the legislative council may choose to present and approve its own election procedures or choose to take no further action.

Second, county auditors won’t be able to reduce the number of polling places by more than 35 percent during an emergency.

“COMMON-SENSE CONSTRAINTS” ON THE SECRETARY OF STATE

The House floor manager, GOP State Representative Bobby Kaufmann, explained the reasoning in his closing remarks in support of the changes on June 11.

“This bill truly prevents voter suppression,” Kaufmann said. He noted that in House district 22 (Pottawattamie County), only two out of twelve polling places were open on June 2. “People had to drive an hour to vote. That’s unacceptable, it’s un-American, and it’s voter suppression. This bill fixes that.”

Kaufmann went on to describe the “dire need to put common-sense constraints” on the secretary of state’s powers. The governor’s emergency powers are “expressly permitted” and have a time limit as well as a legislative override. In contrast, the secretary of state’s emergency powers are “too vague to be anything close to resembling predictable.”

He said the bill wasn’t about Pate’s decision to send absentee ballot request forms to all registered voters. Rather, “This is about one individual not having unchecked power to change election law without the legislature’s consultation.”

What happened this year “sets a precedent,” Kaufmann continued. While many people may approve of extending the early voting period from 29 days to 40, a future secretary of state could use the same powers to shorten the voting period from 29 days to five.

Forcing the secretary of state to ask the legislature’s permission to change election law is “very fair,” Kaufmann argued. “If it’s a good idea, it’ll be granted.” Or, the Legislative Council will be able to create an alternative if they don’t like the secretary of state’s proposal.

Iowa House members approved the amended bill by 95 votes to 2. The opponents were Democratic State Representatives Tim Kacena and Chris Hall. Both represent districts in Woodbury County, where former GOP State Senator Rick Bertrand sued Auditor Pat Gill for proposing to open only two polling places for the 2020 primary. Under a consent order a District Court judge issued in May, the county operated five polling places on June 2.

Senate Democrats didn’t agree with the deal their House counterparts struck. When House File 2486 came back to the Senate after midnight on the final day of the legislative session, Democratic Senators Pam Jochum and Janet Petersen argued against limiting the secretary of state’s emergency powers, while fellow Democrat Todd Taylor spoke against the limits on consolidating polling places during a pandemic. The vote in the upper chamber fell along party lines, with 31 Republicans voting to send the revised bill to the governor and 16 Democrats voting against it.

DON’T ASSUME A STATEWIDE ABSENTEE BALLOT MAILING IS OFF THE TABLE

Reynolds made no special comment about House File 2486, which her office announced in a news release listing 30 bills signed on June 25.

Pate has not clarified whether he will seek to send every Iowa voter an absentee ballot request form this fall. His staff have not responded to Bleeding Heartland’s inquiries about the matter. Given how the secretary of state has touted the record-setting primary participation, my hunch is he will try to repeat the successful policy, especially if COVID-19 cases explode in August and September as students return to Iowa schools and colleges.

Republicans have the votes on the Legislative Council to block that step, if they are united. The 24 council members (listed below) include seven Republicans and five Democrats from each legislative chamber.

But would they want to go there? Consider this: the new law does not stop county auditors from sending absentee ballot request forms to everyone on the voter rolls. Several counties, including Dubuque and Polk, did so before the primary. CORRECTION: Polk County did not send a universal mailing in April but is considering taking that step this fall, according to Auditor Jamie Fitzgerald. However, Linn and Woodbury counties did send forms to all voters before the primary.

I expect other auditors in large counties to adopt the same approach this fall, to reduce the chance of crowded polling places on November 3.

If universal absentee ballot request mailings go out to voters in some counties, but the Legislative Council blocks the same step by the Secretary of State’s office, the result could be more early votes banked in large-population counties that are already high vote producers for Democratic candidates. That could hurt Senator Joni Ernst’s re-election prospects as well as Donald Trump’s chance to carry Iowa again.

It would be particularly damaging for Republican candidates in Congressional races. Running up the score in Polk County elected Representative Cindy Axne in the third district in 2018 and could do so again. Similarly, Abby Finkenauer now represents the first district thanks to good vote margins out of the three largest counties. A big boost for Rita Hart in Johnson and Scott counties would hurt GOP nominee Mariannette Miller-Meeks in the second district. That could give pause to Republicans on the Legislative Council who might otherwise be inclined to slap down Pate.

Final note: Reynolds has not indicated whether she will sign a voter suppression measure added to a large budget bill on the final day of the legislative session. That provision (a Roby Smith brainchild, naturally) would make it more difficult for Iowans to vote by mail. Many organizations are urging the governor to item veto the proposed limits on county auditors.

Even if the governor signs that portion of the budget, a lawsuit could stop the language from taking effect for the 2020 election. Bleeding Heartland discussed the legal issues in more detail here. UPDATE: The governor approved the voting provisions when she signed the budget bill on June 30.

UPDATE: The Dubuque County Elections Office announced on June 30 that they will send every registered voter an absentee ballot request form sometime around Labor Day. I expect similar announcements soon from other large Democratic-leaning counties.
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Appendix: List of current members of Iowa’s Legislative Council

State Senators:
Jack Whitver (R)–vice chair
Charles Schneider (R)
Jake Chapman (R)
Jerry Behn (R)
Randy Feenstra (R)
Amy Sinclair (R)
Dan Zumbach (R)
Janet Petersen (D)
Amanda Ragan (D)
Joe Bolkcom (D)
Pam Jochum (D)
Jim Lykam (D)

State Representatives:
Pat Grassley (R)–chair
Matt Windschitl (R)
John Wills (R)
Jane Bloomingdale (R)
Dave Deyoe (R)
Gary M. Mohr (R)
Lee Hein (R)
Todd Prichard (D)
Jo Oldson (D)
Chris Hall (D)
Brian Meyer (D)
Sharon Steckman (D)

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