The Iowa Supreme Court surprised many in the political and legal worlds on April 15 with a unanimous judgment reinstating U.S. Senate candidate Abby Finkenauer to the Democratic primary ballot.
Five justices resolved an apparent contradiction between two parts of Iowa's election law by saying an incorrect or missing date is not a valid reason for not counting a signature on a candidate's petition. They reversed a Polk County District Court, which days earlier reached the opposite conclusion: that an undated signature cannot be counted, and therefore Finkenauer did not qualify for the ballot.
Two justices concurred with the outcome of reversing the lower court but did not explain their reasoning.
The result was a big loss for Republican plaintiffs who challenged the State Objection Panel's decision to let three disputed signatures on Finkenauer's petitions stand. It's also an embarrassment for Republican legislators who moved last year to limit the panel's discretion.
By deciding this case on narrow grounds, the Iowa Supreme Court left some big legal questions to be adjudicated another election year.
A QUICK TURNAROUND FOR A TIME-SENSITIVE CASE
The high court considered this case extraordinarily quickly. Iowa election officials needed a final decision on or before April 18, so ballots could be printed in time to mail to overseas and military voters 45 days before the June 7 primary election. Litigants submitted briefs on April 12, less than 48 hours after District Court Judge Scott Beattie published his ruling.
Recognizing the case's importance and the lack of a normal briefing process, the justices gave the parties more than double the usual amount of time to speak and answer questions during oral arguments on April 13. The court published its ruling less than 48 hours later.
Chief Justice Susan Christensen and Justices Brent Appel, Edward Mansfield, Matthew McDermott, and Thomas Waterman joined a majority opinion that did not credit any one author.
Justices Christopher McDonald and Dana Oxley did not clarify how they viewed the case. Rather, McDonald wrote a one-sentence special concurrence ("I concur only in the judgment"), which Oxley joined.
"WE MUST BE GUIDED BY THE LEGISLATURE'S LAST WORD ON THE SUBJECT"
After a brief exposition of the facts at hand, the majority noted the "case requires us to attempt to harmonize three statutes."
Iowa Code section 43.14(2)(c) lists reasons that a candidate petition's "signature line shall not be counted," and does not mention a missing or incorrect date.
Iowa Code section 43.15 states in part that each signer "shall add" information including "the date of signing."
Iowa Code section 43.24(1)(a) stipulates that when the State Objection Panel (consisting of the secretary of state, attorney general, and state auditor) considers challenges to candidate nominating papers, "Objections relating to incorrect or incomplete information for information that is required under section 43.14 or 43.18 shall be sustained."
Republican lawmakers added that language to the code in 2021, because the panel had traditionally erred on the side of giving Iowa voters more choices, rather than striking candidates from the ballot on technicalities.
The brief by Alan Ostergren on behalf of plaintiffs Kim Schmett and Leanne Pellett highlighted the "mandatory language" in 43.15, such as "The following requirements shall be observed in the signing and preparation of nomination blanks […]."
The state's brief and the brief Gary Dickey submitted on behalf of Finkenauer's campaign "point out that section 43.14(2)(c) lists reasons why a signature line shall not be counted, but they do not include a missing or incorrect date. They also point out that section 43.24(1) provides that objections based on section 43.14 shall be sustained, but section 43.24(1) says nothing about objections based on section 43.15."
The Iowa Supreme Court's majority saw "flaws" in both arguments. Plaintiffs hadn't explained "why the legislature selected only a subset of the signing requirements as grounds for not counting signatures." The justices saw the date as less "important" than other requirements for petitions. (That could be why McDonald didn't join the opinion; during oral arguments, he seemed to view a date as critical to establishing whether a signer was an eligible voter.)
The court majority acknowledged that when interpreting statutes, "it is sometimes difficult to come up with a neat answer that is intellectually satisfying."
In the end, we believe we must be guided by the legislature’s last word on the subject. Iowa Code section 4.8 provides, “If statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment by the general assembly prevails.”
Plaintiffs had argued that 43.14 doesn't provide an exclusive list of reasons not to count signatures. "That argument would carry more weight if section 43.14 stood alone, and we were measuring it alongside section 43.15 without the benefit of section 43.24," the court's majority held.
Notably, "less than a year ago, the legislature made it clear as to when an objection by a private party is required to be sustained." That amendment mentioned "incorrect or incomplete information" that is required under 43.14 or 43.18 (relating to affidavits of candidacy), and did not mention 43.15 (which requires dates on signatures, among other things).
State Senator Roby Smith, the leading author of most election bills the Republican-controlled legislature has approved since 2017, probably did not anticipate this outcome. He may already be preparing a legislative response, which would further limit the panel's ability to exercise its judgment on challenges to signatures.
The fact remains: if Smith had not tinkered with the code section on objections in 2021, the Supreme Court majority might have reached a different conclusion, putting Finkenauer out of the Senate race.
ISSUES THE SUPREME COURT DIDN'T ADDRESS
Understandably, given the compressed timetable, the majority opinion didn't delve into all legal angles raised by the parties. Among the missing pieces:
Limits on standing to bring such cases
The Finkenauer campaign's brief focused primarily on reasons why these Republican plaintiffs lacked standing to challenge the state panel's decision on a candidate in a Democratic primary. During the oral argument, Dickey repeatedly reminded justices that they did not need to resolve the conflict in Iowa's election law, because they could dismiss the case for lack of standing.
It was a reasonable strategy, since the Supreme Court majority has ruled in other recent cases that Iowans lacked standing to challenge a state agency's decision.
The discussion led to some comical exchanges between the campaign's attorney and Mansfield over a 2020 opinion authored by Mansfield, in which Dickey himself was the unsuccessful plaintiff. (On the video enclosed below, those portions begin around the 28:30 mark and the 1:16:00 mark.)
Ostergren didn't have a good answer for how his clients have an "injury in fact"--that is, how they would be personally harmed by Finkenauer appearing on the ballot. When pressed, he said "every voter has an interest in the orderly functioning of the electoral process." Appel observed that sounded like a "generalized grievance" (which the court majority has rejected in other contexts as grounds to sue). Ostergren argued that code section 43.24 allows any citizen able to vote for the office in question to file such objections.
Mansfield told Dickey the Iowa Supreme Court hasn't confronted the issue of "whether the legislature can confer standing on someone that otherwise would not have an injury in fact." Dickey countered that the standards should be the same in this case as in Dickey v. Iowa Ethics and Campaign Disclosure Board, since both lawsuits involved citizens challenging final agency action. Mansfield saw it differently: the law allowed any Iowan to dispute an ethics board action through a contested case process, but Dickey faced a higher hurdle (which he didn't meet) to get into court.
The majority opinion didn't address such complexities. Instead, footnote 6 read, "We are assuming for purposes of decision that Schmett and Pellett have standing." Perhaps McDonald or Oxley chose not to sign on for that reason.
Whether Finkenauer's campaign should have collected more signatures
Appearing before the panel, the District Court, and the Supreme Court, Ostergren emphasized that the way to avoid challenges like this one is for candidates to collect far more than the minimum of signatures. As expressed in the plaintiffs' final brief, "The statutes mean what they say, and candidates simply need to follow them. And for the candidate who is concerned about a signature here or there being invalid, there is a simple answer: turn in more signatures than the bare minimum."
Everyone knows it was unwise for the Finkenauer campaign to cut it so close in so many counties. Bleeding Heartland has discussed that misstep before. I don't consider that a good reason to disallow a signature marred only by an obvious "scrivener's error," like the Cedar County voter who wrote "6-6" when he meant to write "2-6." Under questioning from Christensen and Oxley, Ostergren admitted plaintiffs were not claiming any of the disputed signatures were fraudulent.
Accepting the premise that the Democrat should not have left herself vulnerable to a bad-faith challenge like this one, why would any court base a ballot access decision on whether a candidate should have collected more signatures, to be safe?
The Supreme Court justices weren't about to go there. It wasn't relevant to the legal question at hand: how to reconcile one code section saying a signer "shall add" a date, another section listing reasons not to count a signature, and a third section explaining which kinds of objections to candidate papers "shall be sustained."
On a related note: during the oral argument, Oxley sounded troubled by the prospect of disqualifying a candidate over a minor problem with a few signatures. She asked Ostergren why the three disputed signatures for Finkenauer don't meet the "essential objective" of the statute, if a date is required primarily to prevent fraud. The majority opinion is silent on that point; perhaps that's why Oxley agreed only with the judgment and not with her colleagues' reasoning.
The panel's "substantial compliance" standard
For many years, the State Objection Panel has considered whether candidates substantially complied with the legal requirements for affidavits and petitions. When discussing Finkenauer's disputed signatures during its March 29 meeting, Attorney General Tom Miller and State Auditor Rob Sand cited the panel's Dvorak decision from 1988. Since that time, the panel has counted some signatures with missing dates, if the date the voter signed could be inferred from other signatures on the same page.
The District Court rejected that practice, saying there was no "clear statutory language or judicial precedent" supporting a "substantial compliance" standard. The state did not claim otherwise on appeal, perhaps sensing that point would not resonate with conservative justices. (Hence the focus on arguments that might convince a "textualist" judge.)
Grasping for some semblance of a victory on April 15, Ostergren tweeted that the majority opinion made "clear" that "the State Objections Panel’s 'substantial compliance' standard is dead."
However, this ruling is narrowly focused. True, the panel's approach in Dvorak seems no longer relevant; under the precedent established in this case, even a whole page of missing dates can't disqualify signatures. But the justices said nothing to preclude the panel from viewing other kinds of challenges from a "substantial compliance" perspective—as long as those objections don't fall into the categories that "shall be sustained," according to the 2021 amendment to the election law.
Republican lawmakers could amend the code again to require "strict compliance" with every requirement for petitions. Doing so would be a legislative choice, not an inevitable result from this Supreme Court ruling.
Recusal standards for State Objection Panel members
The GOP plaintiffs argued that Sand and Miller should have recused themselves from considering the objection to Finkenauer's petitions, for different reasons.
The District Court found no evidence Sand was biased against Ostergren due to an unrelated lawsuit, and no reason for Miller to recuse, despite the challenge to his own petition signatures on similar grounds.
During the oral argument, Waterman asked Ostergren whether the points about recusal were still on the table. The attorney for the plaintiffs confirmed that he had not cross-appealed that portion of the lower court's ruling. He suggested the matter was relevant in the sense that the panel resolved challenges over undated signatures one way "in the morning" (when Miller recused while the panel considered the objection to his own papers), and the opposite way later, when Miller was back in his usual role. The Supreme Court expressed no view on the issue.
The proper method for appealing a panel decision
The state's first response to this lawsuit maintained that the State Objection Panel’s decisions are not reviewable under the Iowa Administrative Procedure Act, “as the Panel is not an agency” under the relevant code chapter. The distinction would affect how the plaintiffs could file the case and the rules on when a panel member must recuse, but not the standard for judicial review.
Attorneys for the state did not pursue the argument, and Judge Beattie rejected it.
The Iowa Supreme Court observed that in its last ruling on an appeal of the State Objection Panel's actions (the Chiodo case from 2014),
we assumed without deciding that the State Objections Panel was an administrative agency from which judicial review could be sought under Iowa Code chapter 17A. 846 N.W.2d 845, 848 n.1 (Iowa 2014). We did so because that is how the action was treated in the district court, the issue was not appealed, and resolution of that issue “is not germane to our determination in this expedited appeal.” Id. The same situation presents itself here. Thus, we will continue to assume without deciding that panel decisions are subject to the requirements of chapter 17A. As in Chiodo, we leave open the question of whether the proper avenue for judicial review is instead by writ of certiorari.
I would welcome feedback from attorneys on the significance of this distinction. Would pursuing judicial review by writ of certiorari change how a court might evaluate who has standing to sue? Or make it easier for the state to defend against a challenge in some other way?
UPDATE: I forgot to mention one.
During the oral arguments (starting around 45:10), McDonald asked Ostergren about the concept of "legislative acquiescence." Typically the Supreme Court has held that if a state agency has acted in a particular way over a long period of time, and the legislature hasn't corrected the practice, that should carry some weight in how the court interprets the statute. Why wasn't the state's attorney Sam Langholz correct when he pointed out that the legislature revisits this code section frequently, yet lawmakers have never moved to change how the State Objection Panel resolved the Dvorak case in 1988?
Ostergren questioned how widely known the Dvorak opinion was, and argued that the court should not attach any weight to the panel's practices.
Some other justices seemed interested in this point, but the majority opinion did not uphold the panel's action on the grounds that state lawmakers acquiesced to the Dvorak approach (allowing undated signatures when the signing date could be inferred from other signatures on the same page).
Top image: U.S. Senate candidate Abby Finkenauer and her husband, Dan Wasta, watch the Iowa Supreme Court's oral arguments on April 13. Photo by Kelsey Kremer/Des Moines Register (pool).