Iowa Republicans ready to back statewide absentee mailing—with a catch

Iowa Secretary of State Paul Pate kept quiet for weeks.

He said nothing in public as Republican lawmakers sought to stop him from taking steps that contributed to record-breaking turnout in Iowa’s primary election.

He said nothing when legislators agreed to allow him to exercise emergency powers over an election only with approval from the GOP-dominated Legislative Council.

He had no public comment when Governor Kim Reynolds signed that bill.

Nor did he react when Republicans on the Legislative Council voted down a Democratic motion to let the secretary of state send absentee ballot request forms to all registered Iowa voters before the November election.

Pate’s staff did not respond to journalists’ inquiries about whether he would attempt to send a universal absentee request mailing this fall.

The secretary of state finally broke his silence on July 16 with a written proposal to mail every active registered Iowa voter an absentee ballot request form. But that’s not all. Pate’s also seeking to stop county auditors from making it easier for their constituents to return complete and accurate requests for absentee ballots.

Republicans on the Legislative Council will surely approve Pate’s request when they meet on July 17. But it’s not clear the secretary of state has the legal authority to limit what county auditors send voters.

LEAVE NO REPUBLICAN COUNTIES BEHIND

During Iowa House and Senate debates last month, some Republican lawmakers asserted that there was no need for a statewide absentee ballot request mailing, since many voters would receive a form from a political party or campaign.

Democratic auditors in Iowa’s largest counties quickly announced plans to send absentee ballot requests to all voters in their own jurisdictions. The upshot was that if election officials in Republican-leaning counties didn’t have the resources to follow suit, GOP candidates in competitive races could be at a disadvantage.

Pate’s proposed Emergency Election Directive (enclosed in full below) notes that his office “has consulted with all 99 County Auditors and not all counties can send an Official State of Iowa Absentee Ballot Request form” to registered voters in their jurisdictions.

For that reason, he is seeking to use federal election assistance funds available through the CARES Act to mail an “Official State of Iowa Absentee Ballot Request form with instructions” to all active registered voters. Crucially, the form “shall be blank” except for the election date (November 3, 2020) and type (general).

The Secretary of State’s website has a sample form, as revised in July 2020.

LEAVE NO DEMOCRATIC AUDITORS’ HANDS UNTIED

The second section of Pate’s directive is more controversial:

To ensure uniformity and to provide voters with consistent guidance on the absentee ballot application process, County Auditors shall distribute only the blank Official State of Iowa Absentee Ballot Request form with official instructions that is promulgated by the Secretary of State’s Office pursuant Iowa Code 53.2(2)(a). […]

That language is aimed at election officials in Iowa’s second- and fourth-largest counties, where about 237,000 of Iowa’s 2 million voters live. Linn County Auditor Joel Miller and Johnson County Auditor Travis Weipert have said their offices will mail every active registered voter an absentee ballot request form with the voter’s information filled in. The plan will reduce the number of forms that come back incomplete or with the wrong four-digit number on the line where the voter PIN should be.

Pate’s elections director and legal counsel had warned county auditors not to pre-populate the voter PIN field, but their letter was not well-grounded in Iowa election law. Miller recently informed the Secretary of State’s office that he will begin the mailing on July 20 “unless otherwise directed” by a court.

Instead of going to court–and losing for lack of a good legal argument against pre-filled absentee ballot requests–Pate is seeking to short-circuit Democratic plans by directive.

GOP legislators will be happy to burden election officials in Linn and Johnson counties. Under a law Republicans approved on the last day of the legislative session, county auditors won’t be able to use computer databases to complete or correct applications with common errors. Instead, staff will need to spend considerable time trying to reach the voter by other means, which won’t be possible by phone or email in many cases. Using the regular mail could take several days.

In a lawsuit filed this week, the League of United Latin American Citizens and Majority Forward assert that the new restrictions “will only lead to unnecessary delay and substantially increase the risk of disenfranchisement of entirely eligible, lawful Iowa voters.” I think their case will succeed in striking down the law for various reasons, but there is no guarantee a court will stop it from being enforced during the upcoming campaign.

CAN PATE CONTROL WHAT COUNTY AUDITORS MAIL?

Pate’s proposed directive cites Iowa Code Chapter 47.1, which states in part that the state commissioner of elections “shall prescribe uniform election practices and procedures” and “shall prescribe the necessary forms required for the conduct of elections.” (Arguably this language would allow the secretary of state to issue a universal absentee ballot request mailing even in the absence of an emergency declaration by the governor.)

The directive also references Iowa Code Chapter 53.2(2)(a), which states in full:

The state commissioner shall prescribe a form for absentee ballot applications. However, if a registered voter submits an application on a sheet of paper no smaller than three by five inches in size that includes all of the information required in this section, the prescribed form is not required.

In other words, Pate’s office must create a sample form, but voters need not use that form to request an absentee ballot. As long as they include the required information (name, signature, date of birth, address, voter PIN, election date, and election type) on the paper they turn in to their county auditor, their application is valid.

By the same logic, the secretary’s power to “prescribe a form” does not imply county auditors can be forced to use that form alone, filled in only as much as the secretary allows.

I have been unable to find any code section that gives Pate authority to dictate mailings from county auditors.

“THE SECRETARY SHOULD STICK TO DOING HIS JOB AND LET US DO OURS”

I sought comment from the local officials who would be most affected by Pate’s order. Johnson County’s Weipert commented on July 16,

The Republican legislature put county auditors in this position. The state had record voter participation in the primaries. The Republicans, in their infinite wisdom, rushed to pass a half-baked law which is solely designed to limit that participation.

Weipert added that Republicans “are solely to blame” for any confusion and inconsistency that may result from the restrictions they put on county auditors.

Linn County’s Miller said in a July 16 written statement (enclosed in full below) that he hopes the Legislative Council will approve Pate’s request for a statewide mailing. But he disagrees with the secretary’s attempt “to dictate the form in which county auditors can mail ABRFs to each auditor’s voters.” Iowa Code contains more than 600 pages of laws relating to elections, he noted.

Moreover, when lawmakers approved a bill last month limiting the secretary of state’s power to alter election procedures without permission, they “were well aware” that some county auditors had mailed absentee ballot request forms before the June primary.

During that same legislative session, those same legislators could have easily removed county auditors’ discretion to mail out ABRFs. They didn’t. They knowingly chose NOT to restrict county auditors’ discretion on mailing out ABRFs.

Now comes the Secretary, seeking permission from the Legislative Council to command county auditors across the State to only mail out officially prescribed blank ABRFs, i.e., if a county auditor chooses to mail out an ABRF.

I do not believe the legislative intent of the Code sections cited by the Secretary was intended to give the Secretary the discretion to pick and choose which election laws he wants to change. And I certainly do not believe the legislative intent was for the Secretary to create laws out of thin air and impose them on other duly elected officials, i.e., county auditors who have a duty to serve the voters in their counties.

What is the harm of voters in Linn County receiving an ABRF from their county auditor and one from the Secretary? None. And that exact scenario occurred prior to the June 2nd primary. What was the result of Linn County voters receiving two ABRFs – one from the Secretary and one from their county auditor? More voters than ever requested an absentee ballot and those same voters and others returned their requested absentee ballots at a rate that broke a primary election turnout record that had been set in 1994.

Miller applauded Pate’s plan to give “voters the option to vote safely by mail” during a pandemic. But he characterized as “absurd”the effort to tell county auditors what forms to send voters. “The Secretary should stick to doing his job and let us do ours.”

I’ll update this post as needed following the Legislative Council’s meeting, which is scheduled for 4:30 pm on July 17.

UPDATE: John Deeth, a longtime elections worker in Johnson County (which contains Iowa City), commented via Twitter,

The timing of this mailing is going to matter a lot. Students won’t get back to campus (IF they do) until mid August, and even the most intense registration drives take a couple weeks. If the mailing is too soon students will be left out.

Pate’s pre-primary mailing went out fairly late. But Republicans deliberately included language targeting college students in Iowa’s 2017 voter ID law, so it wouldn’t surprise me if the secretary of state timed his upcoming mailing to ensure thousands of students wouldn’t receive an absentee ballot request form.

Scott County Auditor Roxanna Moritz, who also leads the Iowa State Association of County Auditors, told Bleeding Heartland on July 17 that she is grateful a statewide absentee ballot mailing will happen. But she added, “It would have been nice if the SOS would have let the Association know what he was thinking before the 18 or so counties invested time and money that could perhaps have been better utilized. I only have time invested but other counties have already printed and or begun mailing.”

LATER UPDATE: Isabella Murray covered the Legislative Council meeting for Iowa Starting Line. Voting along party lines, Republicans defeated two Democratic amendments to Pate’s proposal. State Representative Sharon Steckman proposed approving the statewide mailing but without the part of the directive that requires county auditors to send blank absentee ballot request forms. In addition, her amendment would have allowed

the secretary of state to provide all registered voters who lack a DOT provided ID to receive their voter PIN immediately preceeding the mailing of the absentee ballot request.

“We’re trying to make voting easier and more reliable… also, that PIN number belongs to them, it certainly should be provided to the voter…county auditors are elected to make sure their constituents can vote without confusion,” she said. “I think we’ve muddied the water enough and my amendment will bring some clarity to the entire process.

State Senator Joe Bolkcom’s amendment would have extended the early voting period from 29 days to 40 days, as Pate did before the primary election. That would give voters more time to return ballots and county auditors more time to process what is expected to be a record number of early votes. Iowans could vote early for 40 days before the election for several election cycles, but Republicans shortened the window to 29 days in the 2017 law that also included voter ID requirements.

Murray captured a revealing comment from Senate Majority Leader Jack Whitver.

“We need [the absentee ballot mailing process] to be predictable for campaigns and we need it to be uniform across the state so that Iowans in every county are treated the same,” Sen. Jack Whitver said today. “After today on July 17, every single campaign in the state of Iowa, Republican and Democrat, will know the rules going forward.”

“Three weeks ago we had this discussion and I said I’m not sure if its the government’s job to do turnout for campaigns. I still don’t know if its the government’s job. What we found out over the past two weeks is that some counties are sending out absentee ballot requests, some aren’t. Some are pre-populating, some aren’t. I think what Iowans want is a uniform law across the state of Iowa.”

It’s a ludicrous position. Election officers who encourage all citizens to vote are not doing “turnout for campaigns.” Whitver seems to view any government attempt to expand the electorate as a threat to Republican power. It’s clear he agreed to Pate’s proposal reluctantly and only because Democratic auditors had shown they are ready to help all constituents vote early and safely.

Legislative Council members unanimously approved Pate’s directive after Republicans had rejected the Democratic amendments. The secretary of state declared victory: “This process worked great in the June primary and I believe it will work in the general election.”

County auditors had 40 days to deal with the huge increase in voting by mail before the primary. Their staffs will have to process an even larger number of ballots for the general in a more compressed time frame of 29 days.

JULY 21 UPDATE: Miller and Weipert decided to go ahead with their plans to mail pre-filled absentee ballot request forms. Linn County voters should receive their mailings any day now.
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Appendix 1: Emergency Election Directive Secretary of State Paul Pate has submitted to the Legislative Council

Appendix 2: Statement from Linn County Auditor Joel Miller, provided on July 16

I believe that in the midst of the COVID-19 pandemic, those who are privileged to administer the election process must do everything reasonably possible to assist voters’ participation in a safe manner. I am hopeful the Legislative Council will approve the Secretary’s request to provide absentee ballot request forms (ABRF) to Iowa’s voters. I hope the Secretary distributes the ABRFs in a time frame that does not overly burden Iowa’s county auditors when the ABRFs are mailed by the voters to the county auditors.

I disagree with the Secretary’s attempt via his proposed directive to dictate the form in which county auditors can mail ABRFs to each auditor’s voters.

The Code of Iowa contains over 600 pages of laws pertaining to elections. For example, Election Laws of Iowa 2019, a document published by the Legislative Services Agency, is comprised of 636 pages.

In 2020, the Legislature decided to remove the Secretary’s discretion to send out ABRFs to every active registered voter in the State. Those same legislators that decided to remove the Secretary’s discretion were well aware that some of Iowa’s county auditors had mailed out ABRFs prior to the June 2nd primary election. During that same legislative session, those same legislators could have easily removed county auditors’ discretion to mail out ABRFs. They didn’t. They knowingly chose NOT to restrict county auditors’ discretion on mailing out ABRFs.

Now comes the Secretary, seeking permission from the Legislative Council to command county auditors across the State to only mail out officially prescribed blank ABRFs, i.e., if a county auditor chooses to mail out an ABRF.

I do not believe the legislative intent of the Code sections cited by the Secretary was intended to give the Secretary the discretion to pick and choose which election laws he wants to change. And I certainly do not believe the legislative intent was for the Secretary to create laws out of thin air and impose them on other duly elected officials, i.e., county auditors who have a duty to serve the voters in their counties.

What is the harm of voters in Linn County receiving an ABRF from their county auditor and one from the Secretary? None. And that exact scenario occurred prior to the June 2nd primary. What was the result of Linn County voters receiving two ABRFs – one from the Secretary and one from their county auditor? More voters than ever requested an absentee ballot and those same voters and others returned their requested absentee ballots at a rate that broke a primary election turnout record that had been set in 1994.

In summary, I applaud the Secretary’s desire to mail out ABRFs to Iowa’s voters in this unprecedented time of a pandemic. I’m glad to see that he and I are on the same page when it comes to giving our voters the option to vote safely by mail.

I find it absurd that the Secretary is planning to tell me and some of my peers how to send out ABRFs to our voters, when we took the initiative prior to the June 2nd primary to send out ABRFs weeks before the Secretary finally came to the decision to send out ABRFs across the State. The Secretary should stick to doing his job and let us do ours.

Appendix 3: List of current Legislative Council members

Senate Members

Jack Whitver (R, District 19), Vice Chair
Jerry Behn (R, District 24)
Joe Bolkcom (D, District 43)
Jake Chapman (R, District 10)
Randy Feenstra (R, District 2)
Pam Jochum (D, District 50)
Jim Lykam (D, District 45)
Janet Petersen (D, District 18)
Amanda Ragan (D, District 27)
Charles Schneider (R, District 22)
Amy Sinclair (R, District 14)
Dan Zumbach (R, District 48)

House Members

Pat Grassley (R, District 50), Chair
Jane Bloomingdale (R, District 51)
Dave Deyoe (R, District 49)
Chris Hall (D, District 13)
Lee Hein (R, District 96)
Brian Meyer (D, District 33)
Gary M. Mohr (R, District 94)
Jo Oldson (D, District 41)
Todd Prichard (D, District 52)
Sharon S. Steckman (D, District 53)
John H. Wills (R, District 1)
Matt W. Windschitl (R, District 17)

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