Prospects for overturning Iowa's voter suppression law

Less than 24 hours after Governor Kim Reynolds signed into law new limits on every way to vote in Iowa, attorneys representing the League of United Latin American Citizens in Iowa (LULAC) filed the first lawsuit challenging Senate File 413. Plaintiffs argue the law is “fatally unconstitutional” because it imposes many new burdens on voting, with no justification and no “unifying theme other than making both absentee and election day voting more difficult for lawful Iowa voters.” The named defendants are Secretary of State Paul Pate (the state elections commissioner) and Attorney General Tom Miller (who supervises the county attorneys who would prosecute violations of the law).

The suit filed on March 9 won’t be the only litigation to test Senate File 413. The Libertarian Party of Iowa intends to challenge the much higher signature thresholds for third-party and independent candidates, state party chair Mike Conner Jr. confirmed to Bleeding Heartland. I briefly discuss those potential claims near the end of this post.

But restrictions on voting, especially early voting, are the centerpiece of the new law and the focus of LULAC’s lawsuit. Lead attorney Marc Elias summed up the case on MSNBC’s Rachel Maddow Show on March 9, saying, “Iowa had good, clean elections this November, as they have in the past, and without any reason other than to make voting harder, Iowa made voting harder.”

FOUR CLAIMS UNDER IOWA’S CONSTITUTION

The plaintiffs sued in Polk County District Court. You can read the whole filing here:

Throughout the document, plaintiffs refer to Senate File 413 as the “Voter Suppression Bill.” It’s an accurate assessment, because the law’s provisions do not make any aspect of voting more accessible. On the contrary, the law suppresses voting by giving Iowans less time and fewer opportunities to vote in the manner of their choosing. Voters will have less time to register online or through agencies like the Department of Transportation (those options will be cut off at fifteen days before the election). They will have less time to request an absentee ballot (starting 70 days before an election, rather than 120 days under the previous law).

Iowans who prefer voting by mail are constrained at every stage of the process. They will lose nine days on the front end, since county auditors can’t start mailing ballots until 20 days before an election (previously 29 days). They will lose five days in the middle, as the last day to mail a ballot moves from ten days before a general election to fifteen. Most Iowans voting absentee will also lose six days on the back end, as their ballots can’t be counted if they arrive after 8:00 pm on election day–regardless of when the voter mailed the ballot.

Those who don’t trust the U.S. Postal Service to get their ballots in on time will find it harder to have ballots hand-delivered. The law allows only one ballot drop box per county, regardless of size or population, and “Criminalizes the act of assisting voters with returning their absentee ballots and prevents voters from using a person of their choice to return their ballots.”

The law curtails early in-person voting by starting the process just 20 days before the election and prohibiting county auditors from setting up satellite voting sites unless a certain number of voters petition for one.

Finally, Iowans who choose to vote on election day have one hour less to exercise that option and are guaranteed less time off from work.

Other portions of the bill, discussed on pages 14 and 15 of the petition, “are designed, in ways big and small, to make the voting process more difficult and less accessible for Iowans.” They accelerate the process of removing Iowa voters from the rolls, forbid auditors from proactively sending absentee ballot request forms to voters, create new criminal sanctions for county auditors, and pave the way for “voter intimidation by law enforcement.”

In addition, plaintiffs assert, “These burdens are not justified by any legitimate, much less compelling, state interests.” During legislative debate, the bill’s sponsors did not claim any fraud occurred in Iowa’s 2020 election. Rather, they said the measures would ensure “election integrity,” reduce voter “regret,” and shorten political campaign season. “But nothing in the challenged provisions of the Bill actually serves any of these ostensible interests,” plaintiffs argue. “Instead, the Bill simply makes it harder for Iowans to cast ballots and have those ballots counted.”

Nor is there any “evidence of widespread unlawful voting in Iowa,” which might justify restrictions to address such problems.

The lawsuit names four causes of action.

Count I: Right to vote

Unlike the federal constitution, Iowa’s founding document expressly protects the right to vote in Article II. That’s probably the most important reason plaintiffs filed in state court.

The challenged provisions of the Voter Suppression Bill impose burdens on voters generally, with particularly severe impacts on the right to vote for minority voters, elderly voters, rural voters, young voters, poor voters, new voters, and voters with disabilities. These voters are more likely to vote absentee or lack flexible schedules that allow them to vote on election day. […]

The individual and collective impacts of the challenged provisions of the Voter Suppression Bill are severe and will substantially burden Iowa voters. […]

None of these provisions serves a compelling or even a legitimate government interest.

If courts applied “strict scrutiny” to the law’s provisions, on the grounds that voting is a fundamental constitutional right, the state would need to show some compelling government interest. Under a less stringent “rational basis” standard, the state would need to demonstrate only a legitimate interest in the challenged provisions.

Count II: Free speech

Under Article I, Section 7 of the Iowa Constitution, “No law shall be passed to restrain or abridge the liberty of speech […].” Plaintiffs argue the new limits on hand-delivering ballots violate “free speech and association guarantees” and prohibit “core political expression” by the League of United Latin American Citizens.

In the past, LULAC has helped voters return completed absentee ballots. But now the only people who can take an Iowan’s ballot to the county auditor will be the voter, a voter’s household member or immediate family member, or a “caretaker” of the voter. Plaintiffs say this “Voter Assistance Ban” criminalizes “most forms of assistance for absentee voters,” thereby preventing LULAC “from engaging in constitutionally protected conduct.”

Courts typically apply a strict scrutiny standard to government restrictions on speech. The filing argues that no compelling state interest justifies these provisions, since “other Iowa laws already criminalize any undue influence or voter fraud that the Voter Assistance Ban might be intended to address.”

Count III: Free assembly

Article I, Section 20 of the Iowa Constitution protects the people’s “right freely to assemble together to counsel for the common good.” The ban on helping voters return absentee ballots “prohibits group action to effect political change” and prevents LULAC “from engaging in constitutionally protected conduct.”

Count IV: Equal protection

Article I, Section 6 of the state constitution provides that “All laws of a general nature shall have a uniform operation.” However, plaintiffs argue, the new law “treats ballots cast by similarly situated Iowans differently, denying some their fundamental right to vote.” Most ballots that arrive at county elections offices after 8:00 pm on election day will not be counted, even if they were mailed days or weeks earlier. But ballots cast by some Iowans (those living abroad, military voters, and those in the Safe at Home program for domestic violence victims) could be counted if they arrive up to six days later, as long as a postmark demonstrates they were mailed before election day.

Students attending out-of-state universities and those who spend the winter in warmer climates would be most obviously affected by this disparate treatment. Rural Iowans would also be disadvantaged, because their mail is often sorted in other counties, which can delay delivery by days.

If courts don’t enjoin this part of Senate File 413, plaintiffs say, “the Voter Suppression Bill will impose an arbitrary and disparate mechanism for determining whether Iowans’ votes will be counted […].”

PROSPECTS FOR SUCCESS

Regardless of how the District Court decides this case, the matter will end up before the Iowa Supreme Court. While one can never know how the justices will evaluate competing claims, we can look to past cases for clues.

One key question will be whether the court applies a strict scrutiny or rational basis standard to the election law. Since there is no evidence election fraud has occurred in Iowa, it would be hard for the state to show a compelling interest in some of the restrictions (not counting ballots that arrive after election day, not letting voters designate someone to hand-deliver a ballot, and so on).

But courts don’t always apply heightened scrutiny to voting restrictions. In a 1969 case, the U.S. Supreme Court held it was not an equal protection violation to deny absentee ballots to unsentenced inmates in Cook County, Illinois, since those voters were not “absolutely prohibited from voting.” More recently, various states’ voter ID laws have been upheld in the absence of any evidence they would prevent fraud.

University of Iowa law professor Derek Muller, a scholar of election law, mentioned that 1969 case when Bleeding Heartland asked about possible grounds for challenging Iowa’s new statute. He commented,

It’s not clear how the absentee ballot delivery window would play out in litigation. In 1969, the Court in McDonald v. Board of Election Commissioners of Chicago said, in an oft-repeated line, “It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.” But courts do balance the burden of an election regulation against the state’s interest. It’s unclear how the burdens on this group of voters would be assessed (as a subset of voters or compared to all voters?), and it’s not clear how alternatives (like early in-person voting up to twenty days before the election) offset that. Courts approach these in different ways depending on the evidence. That said, this is one of the shorter windows in the country. 

Most states begin mailing absentee ballots to voters at least 30 days before the election; only five states begin mailing ballots as late as Iowa will under the new law. Most states also allow in-person early voting to begin more than 20 days before the election, though some provide for even shorter in-person early voting periods. The court might find that Iowa is not too far outside the norm.

When the Iowa Supreme Court considered LULAC’s lawsuit against Pate last year, a 4-3 majority concluded that limits on county auditors’ ability to correct errors or omissions on absentee ballot request forms were not too burdensome. Justices Edward Mansfield, Thomas Waterman, Christopher McDonald, and Matthew McDermott were not persuaded “the challenged statute will in fact deny any Iowan the right to vote by absentee ballot.” They didn’t accept that strict scrutiny was warranted, writing that such a standard “is reserved for laws that create ‘severe’ restrictions on the right to vote.”

The majority opinion also stated, “The plaintiffs submit no evidence of anyone who has actually been thwarted from voting, let alone from voting absentee.” While Senate File 413’s many new limits on early voting could prevent thousands of Iowans from having their absentee ballots counted, the justices may find that no one portion of the law is “severe” enough to justify strict scrutiny.

A rational basis standard would not automatically cause the law to be upheld, but it would tilt the field in the government’s favor, given the state’s broad authority to regulate elections. Reynolds’ written statement upon signing Senate File 413 previewed the state’s defense:

“It’s our duty and responsibility to protect the integrity of every election. This legislation strengthens uniformity by providing Iowa’s election officials with consistent parameters for Election Day, absentee voting, database maintenance, as well as a clear appeals process for local county auditors. All of these additional steps promote more transparency and accountability, giving Iowans even greater confidence to cast their ballot.” 

How does putting many additional hurdles in front of voters “protect the integrity” of elections or “promote more transparency and accountability”? Courts have occasionally found the government’s professed interest in a policy was not a legitimate one. Perhaps this will be one of those cases.

What LULAC calls the “Voter Assistance Ban” may be the most vulnerable portion of the new law. Muller told Bleeding Heartland,

The statute’s third-party ballot harvesting ban includes some uncertainties that may invite litigation. It does not exempt postal workers or county officials from collecting another person’s ballot, which are glaring omissions. It does not define “immediate” family member or who is in a “household,” which also invites litigation.

When the Iowa House debated the election bill, Democratic State Representatives Mary Wolfe and Christina Bohannan flagged that part of the law as governmental overreach. Bohannan, who is also a University of Iowa law professor, later told Bleeding Heartland via email,

This means that a voter doesn’t get to decide for herself who she entrusts with their ballot. The bill says only an immediate family member, someone living in the same household, or a “caretaker” can do it. If the voter doesn’t have anyone who falls into those categories or doesn’t trust any of them, the voter would have no one to return the ballot.

For people who are unable to return their own ballot for any reason, I think one could argue this provision impermissibly burdens the right to vote in violation of the Iowa Constitution or the U.S. Constitution, or both.

Bohannan distinguished this case from the lawsuit LULAC filed last year, relating to county auditors and absentee ballot request forms. That Iowa Supreme Court majority opinion pointed out that voters who couldn’t obtain an absentee ballot due to problems with the request form had other options for voting in person, either early or on election day.

By contrast, with the new restriction, some voters might have few options for returning the ballot. It is a much more direct limitation on voting than in the other case. Moreover, there is no justification for limiting so severely those who can return a ballot. For example, the Democrats asked for an amendment to allow the voter to designate one person who could return the ballot for them. There is a printed form one can use for this purpose to ensure integrity.

What about the equal protection claim, relating to most but not all ballots being tossed if they arrive after election day? The state will presumably argue that international or military voters and domestic violence survivors in the Safe at Home program deserve special treatment because they face more potential mail delays. Many other states require absentee ballots to arrive by election day. Though most of those states mail ballots to voters more than 20 days before the election, I would be surprised if a majority of Iowa Supreme Court justices found this requirement to be too burdensome.

LIBERTARIANS TO CHALLENGE SIGNATURE RULES

The national Libertarian Party and its counterpart in Iowa have been considering their legal options. Before the governor signed Senate File 413, state party chair Conner Jr. told Bleeding Heartland that Libertarians were “disgusted” by the bill, which he characterized as “a direct attack against voter rights” that “unconstitutionally impacts ballot access for third party and independent candidates.”

Conner confirmed on March 9 that Libertarians “absolutely plan to take action.” While the legal strategy has not been finalized, he indicated the focus of a lawsuit would be the new signature collection requirements.

U.S. Senate candidates not representing the Democratic or Republican parties would need at least 3,500 signatures to qualify for the general election ballot (up from 1,500 under previous law), including at least 100 signatures from voters living in at least nineteen different counties. Candidates for statewide offices would need at least 2,500 signatures (also up from 1,500), from at least 77 eligible voters in each of at least eighteen counties. U.S. House candidates would need at least 1,726 signatures, including at least 47 signers from at least half the counties in the district. Iowa required only 375 total signatures for third-party Congressional candidates last year.

Compounding the difficulty, third-party candidates in Iowa must file their nominating papers by mid-March of the election year, under a 2019 law that Libertarians are challenging in federal court. (That case is pending.) And because of Census Bureau delays, Iowa is unlikely to adopt a new map of political boundaries before the fourth quarter of 2021. U.S. House candidates won’t be able to start collecting signatures until a Congressional map for the 2020s has been finalized.

Muller speculated that litigation against the new ballot access rules could be successful.

Requiring a minimum number of signatures per a fixed number of counties to get on the ballot and increasing the signature requirements, make it much harder for Libertarian, Green Party, and independent presidential and all other candidates in the future, and those burdens may well be unconstitutional (especially atop the much earlier party ballot access deadline recently enacted). Fixed signatures per county were found unconstitutional by the Supreme Court in Moore v. Ogilvie in 1969, but it can be a context-specific question.

OTHER POSSIBLE CHALLENGES

During the Iowa House debate, Bohannan warned Republicans that harsh new penalties for county elections officials could be unconstitutionally vague. She elaborated in a later email to Bleeding Heartland,

The bill’s amendment to section 39A.6 subjects auditors to a $10,000 fine for “technical infractions” of the Code. As far as I can tell, this term is not used anywhere else in the Iowa Code and is not defined in this section or elsewhere. Historically, it has been applied to mistakes that auditors might make in interpreting or implementing the law. It could apply to any violation of hundreds of different provisions in the Code, including really minor things like stapling something that shouldn’t be stapled or submitting one copy of a document instead of two.

Under current law, the remedy for these infractions is a letter from the SOS informing the auditor of the mistake. Under the bill, the punishment is up to a $10,000 fine. It is worth noting that this is nearly the same fine imposed for willful violations of the law, which constitute a Class D felony. There is also no due process outlined for imposing this fine. Given the severe punishment and the lack of clarity on what the violation is, I would argue that this part of the bill is unconstitutionally vague under due process.

Muller was sympathetic to the goal of “increasing uniformity in elections,” to avoid having “99 sets of rules.” He acknowledged that the statute doesn’t specify which “technical infractions” could be punishable by a $10,000 fine.

I’m not sure who other than a county auditor or employee of a county elections office would have standing to challenge that part of Senate File 413, but it’s worth watching this space.

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