Two Republican voters filed suit on March 31 challenging the State Objection Panel's decision to allow U.S. Senate candidate Abby Finkenauer to remain on the Democratic primary ballot.
Attorney Alan Ostergren, who has represented Republican candidates and committees in several high-profile election cases, filed the lawsuit on behalf of Kim Schmett and Leanne Pellett. They charge that the panel, comprised of Secretary of State Paul Pate, Attorney General Tom Miller, and State Auditor Rob Sand, should have disallowed signatures on Finkenauer's nominating petitions where voters did not provide the correct date. Doing so would have brought the Democratic front-runner's campaign below the threshold of 100 signatures in at least nineteen counties.
Sand and Miller voted to allow those signatures to stand; Pate would have sustained the objection to them.
The lawsuit also charges that Sand and Miller should have recused themselves from considering the objection to Finkenauer's petitions. If the auditor and attorney general had recused, as Ostergren had requested during the panel's March 29 meeting, Republican statewide officials would have replaced them on the panel, and would surely have ruled against letting Finkenauer compete for the Democratic nomination.
However, the plaintiffs did not raise another argument that Ostergren had argued at length when asking the panel to invalidate signatures on Finkenauer's petitions, and those filed by two other candidates.
Ostergren drafted the objection to Finkenauer's petitions on behalf of Schmett and Pellett and argued the case before the panel. Finkenauer's campaign far surpassed the statutory requirement for total signatures (3,500), but cut it close on the other requirement for U.S. Senate candidates: at least 100 signatures in at least nineteen counties.
The objection noted that the campaign submitted at least 100 signatures from the following 20 counties. This chart comes from that document.
The Republicans argued that Finkenauer's campaign missed the mark in four counties. They only needed to persuade the State Objection Panel to agree with them on two of these arguments in order to knock the Senate candidate off the ballot.
- Allamakee County: out of 103 signatures, three were duplicates and one was missing a date.
- Cedar County: out of 103 signatures, one was a duplicate, one was for a voter living in another county, one had the wrong date, and one was undated.
- Clinton County: out of 100 signatures, twelve were missing unit numbers for voters living in a condominium development and ten were from a page that was missing the candidate's county of residence (and one on that page was undated).
- Muscatine County: out of 101 signatures, one was missing an apartment number, and one was supposedly from an invalid address. (In fact, that address was valid.)
THE PANEL'S DECISION
Ostergren had filed a separate objection to Miller's petitions, which the State Objection Panel considered first thing in the morning. The attorney general recused himself and was replaced by Lieutenant Governor Adam Gregg, only for that agenda item.
Gregg and Pate agreed with Ostergren's interpretation of Iowa Code and sustained every objection related to an incorrect date or missing unit number for a residential address. Sand would have allowed those signatures to stand.
After lunch, the panel took up the Finkenauer objection (video here). With Miller back in his usual role, all of the morning's 2-1 votes to strike signatures became 2-1 votes the other way.
For instance, Miller and Sand followed the panel's precedent (dating to 1988) to accept signatures with no date as being "substantially compliant" with Iowa law. The panel had long held that one could infer the signing date from the dates voters had listed on the lines directly above or below the one with the missing date, as on this Cedar County petition page, where the undated signature was obviously from February 7 (click here to enlarge).
The two Democrats also voted to deny objections based on missing apartment or unit numbers. Gary Dickey, the attorney representing the Finkenauer campaign, had noted Iowa Code does not require that level of detail—just "the signer’s residence, with street and number, if any."
The Finkenauer campaign also pointed out that the "Candidate's Guide to the Primary Election," produced by Pate's office, likewise does not mention apartment or unit numbers. Instead, it says a signer's address "must include a house number, street name, and city."
Asked on March 29 why the guide did not mention apartment numbers, the Secretary of State's office spokesperson Kevin Hall said he did not know and declined further comment.
The panel unanimously held that Finkenauer did not submit enough valid signatures from Clinton County, and they agreed not to count duplicates or the Cedar County signature by a Johnson County resident.
But because Sand and Miller accepted signatures without the correct date, and those missing a unit number, the Finkenauer campaign was left with 100 signatures in Allamakee County and 101 signatures in both Cedar and Muscatine. By a 2-1 vote, the panel found Finkenauer's campaign had cleared the 100-signature threshold in exactly nineteen counties, as state law required.
Although Pate had been generous to some candidates when the panel considered objections in previous election cycles, he insisted on a stricter standard this year. As the panel deliberated on Finkenauer's petitions, Pate observed that some 200 Iowa candidates "managed to do it right." If you're running for a high office like U.S. Senate, you need to do the detail work, he added.
Miller philosophically disagreed with playing what he called a "gotcha" game. Disqualifying a candidate because some voter forgot to write down a date would run counter to democratic values, in his view.
"A SIGNATURE LINE ON A NOMINATING PETITION MUST BE DATED"
The lawsuit focuses only on Allamakee and Cedar counties, where lines without a correct date were at issue. Here's the full text of the court filing:
Iowa Code Chapter 43.15 states, "Each signer shall add the signer’s residence, with street and number, if any, and the date of signing."
The plaintiffs maintain, "A signature line on a nominating petition must be dated by the signer." But "Despite the clear instruction of the law that the date of signing is a requirement of a valid signature, the panel denied objections to undated signatures."
Regardless of how Polk County District Court Judge Celene Gogerty rules, the losing side will surely appeal to the Iowa Supreme Court. I don't know how the seven justices will view this case. The State Objection Panel has long evaluated challenges using a "substantial compliance" standard, and has accepted signatures with missing dates since 1988.
While speaking to the panel, Dickey cited a 2014 ruling by Polk County District Court Judge Michael Huppert, which affirmed "substantial compliance" was the correct standard to use when considering defects in nominating petitions. Excerpt from that decision:
As applied to statutes pertaining to nomination petitions, substantial compliance is determined by whether the omission of information could confuse or mislead electors signing the petition.
No eligible voters would be confused or misled by one person forgetting to write the date next to a signature and address. Similarly, no one would be led astray by the other Cedar County signature the plaintiffs are challenging, where a voter appears to have written "6-6-27" or "6-6-22."
Indeed, we can be confident no one was confused by that mistake, because the next twelve voters to sign the same page all wrote "2-6-22." (click to enlarge)
In the Finkenauer campaign's written response to the objection, and during the State Objection Panel meeting, Dickey raised a separate point the state's attorneys may use when defending against the lawsuit. Although Iowa Code 43.15 does say petition signers "shall add" the date, a subsection of Iowa Code 43.14 enumerates the allowable reasons for not counting a signature.
c. A signature line shall not be counted if the line lacks the signature of the eligible elector and the signer’s residential address, with street and number, if any, and city. A signature line shall not be counted if an eligible elector supplies only a partial address or a post office box address, or if the signer’s address is obviously outside the boundaries of the district.
d. A signature line shall not be counted if any of the required information is crossed out or redacted at the time the nomination papers are filed with the state commissioner or commissioner.
Nowhere in 43.14 does it say a signature shall not be counted if the date is missing or incorrect, Dickey emphasized.
Faced with an apparent contradiction in the statute, the Iowa Supreme Court may show deference to the panel members who are charged with resolving these disputes.
To avoid that outcome, plaintiffs are also challenging the legitimacy of the State Objection Panel, as it was constituted on March 29.
"THE AUDITOR OF STATE AND ATTORNEY GENERAL WERE REQUIRED TO RECUSE"
Ostergren requested in writing and repeatedly during the panel meeting that Sand and Miller recuse themselves. Sand declined, saying he had known Ostergren for about twelve years, and the two had shared meals. "I harbor no animus and I won’t be recusing myself."
Miller also declined to recuse from matters other than his own nominating papers: "I’ve got a statutory obligation to sit on this panel and make judgments and make my best judgments."
The plaintiffs' court filing claims Sand has a "demonstrated personal bias" against Ostergren, who sued the auditor and his chief of staff last summer over alleged open records violations. (Disclosure: the records not provided to Ostergren include some email correspondence between staff in the State Auditor's office and myself.) Plaintiffs claim:
Although the existence of the lawsuit would not ordinarily be grounds for recusal, Auditor Sand’s spokesperson called counsel for objectors a “political hack” in a statement issued in response to the filing of the lawsuit. The demonstrated lack of impartiality on the part of Auditor Sand required his recusal.
This seems like a reach to me. I would welcome insight from attorneys or judges on whether Sand was obliged to recuse because a spokesperson once expressed an unflattering opinion about an attorney for one of the parties.
The plaintiffs say the attorney general should have recused because the objections to Finkenauer's petitions "were based on substantially the same legal arguments" as the objection to Miller's own nominating petitions. When the panel "reconstituted" to consider the Finkenauer matter, "there was still a live legal dispute regarding [Miller's] petition because of the possibility of judicial review of the denial of the objection."
18. Despite his promise to follow the panel’s precedents, the Attorney General voted to reject challenges to signatures on the Finkenauer petition that were based on inaccurate or missing dates. Thus, the substantive rule being applied by the State Objection Panel changed because of Miller’s refusal to recuse himself.
19. Had the panel applied its precedents from its consideration of the Miller petition to the objection to the Finkenauer petition, it would have granted the objections to the Allamakee County and Cedar County signatures and sustained the objection to her nomination petition.
Ostergren complained during the panel meeting and to reporters afterward that the standards changed from the morning to the afternoon. The irony here, which Miller mentioned as the panel considered Finkenauer's petitions, is that Pate and Gregg had ignored the panel's precedents (including the 1988 Dvorak decision) when they abandoned the "substantial compliance" standard and rejected signatures with missing or otherwise flawed dates.
Pate acknowledged during the Finkenauer deliberations that panel members can "pick and choose" whether to follow previous decisions.
WHAT'S MISSING FROM THE LAWSUIT
Ostergren, attorneys representing candidates, and panel members spent a long time on March 29 discussing signatures with missing college dorm room or apartment unit numbers. Nevertheless, the lawsuit does not ask the court to reverse the panel's decision to count a Muscatine County signature lacking an apartment number.
Several lawyers have suggested to me that disqualifying a candidate over missing apartment numbers on petitions would not likely hold up in court, since Iowa Code does not require an apartment number, the official candidate's guide did not suggest collecting apartment numbers, and the official petition form (unlike the voter registration forms produced by the Secretary of State's office) did not ask for apartment numbers.
I suspect Ostergren left this argument out of his court filing for a more straightforward reason: objectors had challenged two of the 101 Muscatine signatures. But panel members unanimously held that one of those electors did write down a valid address. So Finkenauer's campaign would have 100 signatures in that county, even if a court found the one with the missing apartment number should have been excluded.
Although this case will not give the Iowa Supreme Court an opportunity to weigh in on signatures lacking a unit number, how the high court views the missing dates will provide guidance on whether "substantial compliance" or a more exacting standard should be applied to Iowa candidates' nominating petitions.
Top image: State Auditor Rob Sand, Attorney General Tom Miller, and Secretary of State Paul Pate listen during the March 29 meeting of the State Objection Panel.