Lawsuit challenges Paul Pate's limits on ballot drop boxes

Two groups charge in a lawsuit filed this week that Iowa Secretary of State Paul Pate exceeded his authority and violated the Iowa Constitution by restricting the placement of drop boxes for absentee ballots in guidance issued this month.

The League of United Latin American Citizens of Iowa (LULAC) and Majority Forward argued that Pate infringed on the “home rule” authority of Iowa counties as well as on individuals’ fundamental constitutional right to vote.

BOXES ALLOWED “AT THEIR OFFICE” OR “DIRECTLY SURROUNDING THE BUILDING”

During an election administrator training session in August, the Secretary of State’s office rolled out a half-baked effort to ban boxes where voters could hand-deliver absentee ballots at any time of the day or night. Instead, Pate’s legal counsel asserted, ballot drop boxes could be placed only in county elections offices for voters “to use during regular business hours.”

Such restrictions would defeat the purpose of a drop box, making them inaccessible to anyone unable to get to the office during weekday opening hours. Dozens of county auditors had used drop boxes before, without incident.

Before long, Pate backpedaled. The Secretary of State’s office issued guidance on September 2 stating,

A county auditor may develop a no-contact ballot delivery system option located at their office […] or on county owned and maintained property directly surrounding the building where their office is located.

The target was Linn County Auditor Joel Miller, who had placed drop boxes outside three Hy-Vee grocery stores as well as outside the county government offices. He explained to local television reporter Michael Howell in July, “We basically wanted to get these drop boxes out into other locations in the community that were convenient, and nothing is more convenient than a grocery store.”

In a statement to Bleeding Heartland early this month, Miller characterized the secretary of state’s reasoning as “hogwash” but said he would comply with the guidance, “Barring a court order.”

Although Miller opted not to fight this battle, two groups stepped in for him.

“THE RESTRICTIONS ARE UNLAWFUL AND UNCONSTITUTIONAL”

LULAC and Majority Forward filed two petitions in Polk County District Court on September 14. Both make similar arguments about the importance of absentee voting, particularly during a pandemic, and both seek to block enforcement of the drop box guidance from the Secretary of State’s office. One focuses on constitutional claims, the other on administrative errors in Pate’s approach–going beyond his authority without using the proper rulemaking process.

The first constitutional claim relates to the “home rule” provisions added to the state constitution in 1978. Article III, Section 39A reads,

A county may, except as expressly limited by the Constitution of the State of Iowa, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.

County auditors have the authority to run elections. No state law has limited local action on ballot drop boxes, the plaintiffs note, nor has the legislature delegated lawmaking authority to the secretary of state. Furthermore, “county auditors are uniquely positioned to assess the impacts of the pandemic and slowdowns in mail service on their communities and implement measures, such as drop boxes located in convenient locations, to make it easier and safer for their residents to return their ballots.”

The second constitutional claim relates to individuals’ right to vote under Article I, Section 1 of the Iowa Constitution.

The Drop Box Restrictions unconstitutionally interfere with the right of suffrage guaranteed by Article II of the Iowa Constitution because they attempt to limit how voters can return absentee ballots. […]

The Restrictions require voters to undertake additional, burdensome steps to return their absentee ballot. For example, voters in large counties and remote locations will have to travel long distances to reach the only drop box in their county, disproportionately burdening low-income voters, rural voters, voters with disabilities, elderly voters, and voters without access to transportation, among others. When voters cannot reach these locations, they are relegated to mail delivery and likely mail delays and are far more susceptible to disenfranchisement.

Because the limits on drop boxes “impose a substantial burden on fundamental constitutional rights of voters” and “are not narrowly tailored to serve a compelling government interest,” they cannot withstand scrutiny. Plaintiffs are asking the court to declare the restrictions unconstitutional, force Pate to withdraw them, and declare that the secretary of state had no authority to limit drop boxes.

The other petition also discusses “the potential widespread disenfranchisement caused by the Secretary’s erroneous interpretation of Iowa law,” with more administrative arguments about Pate’s “unreasonable, irrational, arbitrary, and capricious actions” and “illegal rulemaking.” Among the many deficiencies noted:

The Secretary lacks the authority to issue the Restrictions, to regulate county- administered drop boxes, or to prohibit county auditors from setting up off-site drop boxes. Iowa Code § 47.1 authorizes the Secretary to “adopt rules … pursuant to Chapter 17A” to fulfill his responsibility to prescribe “uniform election practices and procedures.” They do not, however, authorize the Secretary to issue immediately binding and enforceable mandates on this topic. The Drop Box Restrictions are not a rule adopted pursuant to Chapter 17A and so cannot be enforced pursuant to Iowa Code § 47.1. […]

The process by which the Secretary issued the Restrictions is subject to Iowa Code § 17A.4’s rulemaking procedures, including the period of notice and comment. The Secretary failed to comply with these required procedures. Indeed, the Secretary failed to even attempt to comply with those requirements. […]

The legislature has not outlawed drop boxes, much less granted the Secretary the authority to prevent counties from establishing off-site drop boxes or to prevent registered voters from using them.

At this writing, no hearing has been set. County auditors will start mailing ballots to voters who have requested them on October 5, leaving little time to resolve this matter.

LULAC and Majority Forward filed a separate lawsuit in July challenging newly enacted restrictions on how county auditors can process absentee ballots. However, they have had to wait more than two months to present arguments in court. A hearing on their request for a temporary injunction is set for September 23–after auditors have processed hundreds of thousands of absentee ballot request forms under the Republican-backed law.

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Appendix: Court filings in the League of United Latin American Citizens of Iowa and Majority Forward lawsuit against Secretary of State Paul Pate regarding his office’s guidance on absentee ballot drop boxes

Top photo: Absentee ballot drop box (left) next to two U.S. Postal Service mailboxes in the parking lot of the Jean Oxley Linn County Public Service Center in Cedar Rapids. Posted on the Linn County Elections Facebook page in May 2020.

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