Revised lawsuit challenges Iowa's newest voter suppression law

Plaintiffs challenging Iowa’s manifold new restrictions on voting amended their complaint on June 9 to incorporate provisions in a law Governor Kim Reynolds signed the previous day.

The League of United Latin American Citizens of Iowa (LULAC) filed suit in Polk County District Court in March, charging that Senate File 413 violated Iowa constitutional provisions on the right to vote, free speech, free assembly, and equal protection. Their revised petition asks the court to invalidate two sections of Senate File 568 as well as thirteen sections of the law enacted earlier this year.

NEW RESTRICTIONS ON HELPING VOTERS RETURN ABSENTEE BALLOTS

Senate File 568 was described as a “technical” election bill. Although Democrats did not support the initial version of the legislation, which the Iowa Senate approved in March, that bill did not burden the right to vote, as Senate File 413 had done.

State Representative Bobby Kaufmann introduced a lengthy amendment to Senate File 568 on May 19, the final day of the Iowa legislature’s 2021 session. State Senator Roby Smith, the leading figure in recent efforts to disenfranchise Iowans, ran the bill in the upper chamber. Republicans approved the amended bill on party-line votes in the House and Senate.

Section 43 of the new law replaces language in the earlier law about who can help a voter return a completed absentee ballot. Under Senate File 413, only the voter, someone living in the voter’s household, an immediate family member, or someone serving as a “caretaker” was authorized to return a ballot by mail or by hand-delivering to the county auditor’s office.

Senate File 568 makes it even more difficult for Iowans who request absentee ballots to ensure that their votes will be counted. For Iowans who are not blind or physically disabled, only the voter, someone living in the same household, or an immediate family member to the fourth degree of consanguinity can collect and return a completed absentee ballot.

Voters who are blind or physically disabled have an additional option: they can designate a “delivery agent” to return their ballot. The delivery agent must be a registered voter and can return at most two ballots per election. The agent can’t be anyone representing the voter’s employer, union, or a “person acting as an actual or implied agent” for a political party, candidate, or political committee. In other words, Republicans outlawed “ballot chase” operations, which Democrats have used effectively in some parts of Iowa.

It appears that voters who are not blind or physically disabled cannot designate anyone to collect and return their completed ballot, even if they need help for some other reason (they don’t drive, they are busy with caretaking responsibilities, they live with an abusive partner).

Mailing a completed ballot increases the chance that an Iowan’s vote will not be counted. Under the law Reynolds signed in March, the early voting period is shorter, county auditors have fewer days to mail absentee ballots, and ballots returned by mail must arrive by 8:00 pm on election day. (Previous law allowed late-arriving ballots to be counted if they had been postmarked no later than the day before the election.)

MORE OBSTACLES FOR IOWANS WANTING TO VOTE EARLY IN PERSON

Republicans already prohibited county auditors from scheduling satellite voting locations where Iowans could cast early ballots in person. Satellite voting doesn’t happen in most small counties but is popular in the larger counties where many Iowa Democrats live.

Under Senate File 413, voters could still petition for a satellite voting site in their county. But the late amendment to Senate File 568 put up more roadblocks. Section 40 of that bill gives county auditors four justifications for rejecting an “otherwise valid petition” for a satellite voting site:

  1. “The site requested is not accessible to elderly and disabled voters.”
  2. “The site requested has other physical limitations that make it impossible to meet the requirements for ballot security and secret voting.”
  3. “The owner of the site refuses permission to locate the satellite absentee voting station at the site requested by the petition […]”
  4. “After reasonable efforts, the commissioner is unable to sufficiently staff the satellite absentee voting station to ensure compliance with the law of this state.”

Under those standards, the newly appointed Republican auditor of Scott County–the third largest in Iowa–could find pretexts to reject every request for early voting sites other than the one at county elections office. Or, she could approve satellite voting sites in neighborhoods where many Republicans live but declare she is “unable to sufficiently staff” stations requested in Democratic neighborhoods.

“AN UNDUE BURDEN ON THE FUNDAMENTAL RIGHT TO VOTE”

Here’s the full text of the revised petition filed on June 9 by Iowa attorneys Gary Dickey and Shayla McCormally and attorneys from the Washington, DC-based law firm Perkins Coie.

The petition notes that Iowans voted in record numbers last year. “The record turnout was reflected across many demographics but was especially notable among the 15 percent of Iowans who are members of minority groups, including Iowa’s Latino community, which constitutes around 6 percent of the state’s population.”

Instead of celebrating “historic levels of direct engagement in the democratic process,” “one of the Iowa Legislature’s top post-election priorities was to pass omnibus election bills that restrict nearly every form of voting that Iowans—particularly minority voters—relied on in 2020.” The newly enacted “Voter Suppression Bills” contain the following provisions:

  • Reduce the opportunities for voters to register before elections (Section 22 of SF 413);
  • Significantly reduce the number of days when voters can request absentee ballots (Sections 43 and 45 of SF 413);
  • Shorten the absentee voting period by more than one week (Section 47 of SF 413);
  • Reduce the number of days when county auditors can send out absentee ballots (Sections 45 and 47 of SF 413);
  • Reduce the number of days for most voters to return their absentee ballots and apply ballot-receipt deadlines unequally (Sections 1, 52, 54, and 66 of SF 413);
  • Inhibit or eliminate the ability of election officials to establish convenient opportunities for absentee voting at satellite voting stations, county auditors’ offices, and drop boxes (Sections 50–51 and 53 of SF 413 and Section 40 of SF 568);
  • Criminalize the act of assisting voters with returning their absentee ballots and prevent voters from using a person of their choice to return their ballots (Section 43 of SF 568);
  • Shorten the length of time when polls are open on election day (Section 36 of SF 413); and
  • Reduce the amount of time that employers must provide to certain employees on election day so they can vote (Section 41 of SF 413).

Moreover, the bills

lack any cognizable justification for these burdensome effects on the franchise. The Bills are largely a grab-bag of amendments and new restrictions that lack any unifying theme other than making both absentee and election day voting more difficult for lawful Iowa voters.

Although Republicans have claimed the bills are about “election integrity,” the system doesn’t have any problems “that would call the integrity of the state’s elections into question or require remedial action from the Legislature, let alone these extreme measures that will impose significant burdens on voters.”

Nor would the new restrictions make elections more secure. “Instead, the Voter Suppression Bills are cynical manipulations of the electoral process that create problems—burdens for both absentee and in-person voters that do not serve any articulable state interests—without solving any.”

“Because these unnecessary voting restrictions independently and collectively impose an undue burden on the fundamental right to vote and violate multiple provisions of the Iowa Constitution,” LULAC is asking the court to declare them unconstitutional and permanently block them from taking effect.

FOUR VIOLATIONS OF THE IOWA CONSTITUTION

The lawsuit filed in March cited four sections of the Iowa Constitution which guarantee the right to vote, free speech, free assembly, and equal protection. The new court filing still makes four constitutional claims but has revised them.

Count I: Right to vote

Unlike the U.S. Constitution, Iowa’s constitution specifically protects the fundamental right to vote. The two new laws burden that right in many ways. “None of these provisions serves a compelling or even a legitimate government interest,” plaintiffs argue.

When courts apply “strict scrutiny” to a law being challenged, the government body must show the statute serves a compelling government interest. If judges apply a less stringent “rational basis” standard, the state would need to show only a “legitimate” interest in the provisions.

Count II: Free speech and association

These provisions come into play because LULAC has helped many voters return completed absentee ballots. The new restrictions on who can help return ballots, which plaintiffs call a “Voter Assistance Ban,” prevent LULAC and its members “from engaging in constitutionally protected conduct.”

Courts typically subject infringements on speech and association to strict scrutiny. The lawsuit notes that the limits serve no compelling state interest, because “other Iowa laws already criminalize any undue influence or voter fraud that the Voter Assistance Ban might be intended to address.”

Count III: Equal protection

Plaintiffs argue that the new laws “treat 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.

“Absent relief from this Court, the Voter Suppression Bills will impose an arbitrary and disparate mechanism for determining whether Iowans’ votes—including the votes of Plaintiff’s members—will be counted […].”

Count IV: Viewpoint discrimination

This new claim in the revised petition argues,

The Voter Suppression Bills target individuals who are more likely to vote for Democratic Party candidates, including Latino voters and other voters of color. The Iowa Legislature, with intent to achieve a partisan advantage, has manipulated the state’s election mechanics in ways that restrict or eliminate methods of voting that are disproportionately used by Plaintiff’s members and the communities they serve because of their perceived political views— and, in doing so, imposed unjustified barriers on Plaintiff’s members’ ability to participate in the political process.

Regardless of how the Polk County District Court resolves this lawsuit, the case will surely be appealed to the Iowa Supreme Court before the 2022 election. No one can be sure of how the justices will decide any case, but my post on LULAC’s initial lawsuit included some speculation about whether the court will find Iowa’s new voting restrictions too burdensome.

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Whitewashing history

Jim Chrisinger: The bottom line from a new law’s whitewash of history appears to be protecting the feelings of white people, particularly white men. -promoted by Laura Belin

Add Iowa to the growing list of GOP-dominated states trying to prevent an honest historical reckoning on race and sex. While attention has focused on race, sex gets equal billing in House File 802, which Governor Kim Reynolds signed into law on June 8.  

A BAN ON “SCAPEGOATING” AND “STEREOTYPING”

Along with definitions, the law adds three new sections to Iowa code: one for state and local governments, one for public universities, and one for school districts.  

Training in state and local governments and school districts cannot teach or advocate “race or sex scapegoating” or “race or sex stereotyping.”  

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Will poll-tested language sway Iowa voters on abortion amendment?

During the closing days of the Iowa legislature’s 2021 session, Republicans accomplished one task that eluded them in 2020: getting a constitutional amendment on abortion halfway toward appearing on a statewide ballot. I expected the House and Senate to approve the measure quickly, emboldened by a larger majority in the lower chamber, where the proposal stalled last year.

Instead, Republicans spent months haggling over how the amendment would be phrased, hoping to make this effort more palatable to Iowans who currently oppose it.

FOUR PATHS TO SAME DESTINATION

Republicans want to overturn a 2018 Iowa Supreme Court ruling, which held that women have a fundamental right to abortion under the state constitutional provisions on equal protection and due process rights. Two dissenting justices, Edward Mansfield and Thomas Waterman, warned that the majority’s reasoning “would make any abortion restriction very difficult to sustain,” and could become “a stepping stone toward a ruling that Iowa’s Medicaid program must fund abortions.”

The first version of the constitutional amendment, introduced in early 2019, read simply, “The Constitution of the State of Iowa does not secure or protect a right to abortion or require the funding of abortion.” The Senate State Government Committee passed the joint resolution along party lines, but Senate leaders never brought the measure to a vote on the floor that year.

In early 2020, the Senate State Government Committee advanced a longer version of the amendment.

Sec.26. Protection of life. To defend the dignity of all human life, and to protect mothers and unborn children from efforts to expand abortion even to the day of birth, we the people of the State of Iowa declare that this Constitution shall not be construed to recognize, grant, or secure a right to abortion or to require the public funding of abortion.

The Iowa Senate approved the amendment along party lines. But it never came to a vote in the House, where Republican leaders couldn’t find 51 votes to pass it among the 53 members of their caucus.

Republicans expanded their House majority to 59-41 following the 2020 election. Soon after this year’s session convened, the House Judiciary Committee took up a streamlined version of the constitutional amendment, which read,

Sec.26. To defend and protect unborn children, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.

House members approved the proposal before the end of January on a mostly party-line vote. (Republicans Jane Bloomingdale, Lee Hein, and Dave Maxwell joined all Democrats in voting no.)

I thought Senate Republicans would quickly pass this legislation and declare victory. But Senate leaders waited until early April to bring up the measure. A floor manager’s amendment from Senate President Jake Chapman restored the wording the upper chamber had approved in 2020:

Sec.26. Protection of life. To defend the dignity of all human life, and to protect mothers and unborn children from efforts to expand abortion even to the day of birth, we the people of the State of Iowa declare that this Constitution shall not be construed to recognize, grant, or secure a right to abortion or to require the public funding of abortion.

Six weeks passed with no action on the amendment in the House, as Republican lawmakers negotiated behind the scenes. The fourth and final version was unveiled in an amendment offered by the House floor manager, State Representative Steve Holt. Its phrasing closely tracked the Senate’s preferred language, without the reference to mothers and replacing “protection of life” with simply “life.”

Sec. 26. Life. To defend the dignity of all human life and protect unborn children from efforts to expand abortion even to the point of birth, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.

Following a contentious debate on May 18, House members approved the constitutional amendment by 54 votes to 38. Again, Republicans Bloomingdale, Hein, and Maxwell joined all Democrats present to oppose the legislation.

The Senate vote on May 19 fell along strict party lines, 30 Republicans for the legislation and 18 Democrats against.

During that day’s debate, Democratic State Senator Sarah Trone Garriott denounced the “needless back and forth” between the chambers over “minute word choices.” She characterized the changes to the amendment as “posturing” by “a bunch of men trying to assert dominance over each other.”

That dynamic may have been in play, but there was another reason GOP senators insisted on their preferred wording. Anti-abortion advocates believe the phrasing will make an apparently unpopular idea into an electoral winner.

POLLING SHOWS LITTLE SUPPORT FOR CONSTITUTIONAL AMENDMENT

Introducing the revised amendment on the Iowa House floor, Holt said he believed the new language was better than what either chamber had initially proposed. Chapman told Senate colleagues lawmakers had been working to agree “on language that can be proposed to the voters of Iowa.”

To amend Iowa’s constitution, both chambers of separately elected legislatures must pass identical wording. The proposal then goes on a statewide ballot, where a majority of participating voters must approve the language.

The last two public polls on the subject indicated that while Iowans may be divided over whether abortion should be mostly legal or mostly illegal, a clear majority oppose this Republican project.

Selzer & Co’s latest statewide poll for the Des Moines Register and Mediacom found that just 31 percent of Iowa adults support amending the constitution “to say it does not recognize a right to abortion or require public funding of abortion,” while 58 percent oppose that idea. Selzer’s March 2020 Iowa poll produced similar results: 33 percent of respondents supported the amendment, while 54 percent opposed it. Iowans describing themselves as political independents were against the idea by a nearly two to one margin.

As Bleeding Heartland discussed here, Selzer’s random sample of Iowa adults may not reflect the views of registered voters or those who participate in elections. So one can’t assume these poll numbers match the views of Iowans who will cast ballots when this proposal might appear on a statewide ballot (no earlier than 2023 or 2024). But even in a low-turnout environment, a constitutional amendment backed by only a third of Iowans would likely have trouble winning a majority of votes.

The solution for Republicans is to change the focus of the debate.

CONSERVATIVES BATTLING STRAW MAN: ABORTION EXPANSION

While the constitutional amendment was in limbo, I had heard that Senate Republicans maintained their approach was backed up by private polling. Chapman and Holt did not respond to Bleeding Heartland’s inquiries about the negotiations or any survey research that may have influenced the phrasing.

Drew Zahn, communications director for the influential conservative group The FAMiLY Leader, confirmed via email that his group has advocated for language “we hoped would be appealing to the voters who ultimately must ratify it.” (emphasis added)

We did conduct polling on proposed language for the amendment and found, contrary to other publicized polling, that when Iowans understand what the amendment is actually about – restoring the voice of the people in the legislative process after radical, unelected judges attempted to silence the abortion debate without any input from voters – the majority of Iowans actually favor the amendment. Iowans overwhelmingly do NOT support the taxpayer-funded abortion or expansion of abortion to the point of a baby’s birth that the 2018 decision paves the way for. Furthermore, Iowans overwhelmingly agree that the little child in her mother’s womb – she’s a baby, and her value and voice should be heard in this debate, too.

Zahn declined to provide details about the group’s polling, such as the dates surveys were in the field, the question wording, or partisan breakdown of respondents in the sample. But he did confirm the polling “was of likely voters, not all Iowa adults.”

According to Zahn, “Legislators we talked to took our advocacy under advisement,” but The FAMiLY Leader “was not privy to” recent negotiations between House and Senate Republicans.

How close was the final version of House Joint Resolution 5 to what the conservative group had suggested? Zahn told me,

As for the final language, it was a long process, not really possible to compare language A to language B. But we are pleased that the final language is clear and should effectively return proper, constitutional government on this issue to We the People, rather than unelected and overreaching judges.

Republicans mostly stuck to that script during the last House and Senate debates on the amendment. For instance, State Representative Sandy Salmon told House members on May 18 that the proposal is intended solely to address a judicial “power grab.”

This amendment does not outlaw abortion. It only restores the legislature’s authority, and therefore the people’s authority, to regulate it. And we need that authority. That is what this amendment will do, and that is all it will do.

Holt made the same claim: “This is about letting the people of Iowa decide this issue through their elected representatives, and not the Iowa Supreme Court.” He quoted from the Iowa Supreme Court’s dissenting opinion by Mansfield and Waterman, asserting that the 2018 precedent would make “any abortion restriction very difficult to sustain,” and could lead to public-funded abortions up to the day of birth. To hear Holt tell the story, without this amendment, Iowa could join the list of states where abortions can be performed at taxpayer expense at any time in pregnancy.

That scenario is ludicrous. Iowa has banned third-trimester abortions for decades. No one proposed changing that law during the four years pro-choice Democrats controlled both chambers of the legislature and the governor’s office (2007 through 2010). In addition, Republicans enacted a law in 2017 that prohibits almost all abortions after 20 weeks gestation. Even if some politicians sought to legalize abortions later in pregnancy, Republicans who oppose abortion now control Iowa’s legislative and executive branches.

Remember what Zahn said about The FAMiLY Leader’s polling: “Iowans overwhelmingly do NOT support the taxpayer-funded abortion or expansion of abortion to the point of a baby’s birth that the 2018 decision paves the way for.”

And note that the final version of the constitutional amendment refers to protecting “unborn children from efforts to expand abortion even to the point of birth.”

Republicans appear to believe this sleight of hand will bring Iowa voters to their side, taking the focus away from their real agenda.

“THIS IS ABOUT AN ALL-OUT BAN ON ABORTIONS WITH NO EXCEPTIONS”

Iowa House and Senate Republicans approved legislation in 2018 that would have banned almost all abortions after about six weeks gestation. (A Polk County District Court judge struck down that law, citing the Iowa Supreme Court’s precedent.) The obvious goal of amending the constitution to overturn that Supreme Court ruling is to clear a path for future abortion bans with few or no exceptions.

In January, House Republicans voted down several Democratic amendments to House Joint Resolution 5, which would have preserved some aspects of Iowans’ reproductive rights. (A procedural trick on May 18 knocked the same amendments out of order, so House members would not have to vote on them again.) The upshot is that the proposed constitutional amendment has:

  • no wording to clarify that it “shall not be construed” to prohibit the sale or use of any contraceptive (proposed by State Representative Christina Bohannan)
  • no exceptions for pregnancies resulting from rape or incest (proposed by State Representative Marti Anderson)
  • no language to clarify that it does not prohibit the disposition of embryos produced for vitro fertilization (proposed by State Representative Kristin Sunde)
  • no exception for a woman “certified by a physician to be in danger of death unless the abortion is performed” (proposed by State Representative Mary Wolfe)

Many Democratic legislators spoke passionately against the constitutional amendment, and several pointed out that the Republicans’ compromise wording removed any reference to mothers. Here’s part of one speech by Bohannan, whose day job is being a University of Iowa law professor.

While Republicans have claimed their proposal is about stopping late-term abortions or public funding of abortions, Bohannan said,

That’s not what this amendment does. It completely eliminates the right to abortion altogether, under any circumstances. You don’t have a right for rape, you don’t have a right for incest, you don’t have a right to save the life of the mother, clearly. And now, it’s very explicit with this secondary amendment that eliminates mothers from the equation all together.

When questioned by Bohannan, Holt denied that Republicans are “not interested in protecting mothers.” He said they were only “trying to make the language as concise and understandable as possible.” He again cited concerns two Iowa Supreme Court justices had expressed in 2018 about late-term abortions and taxpayer-funded abortion.

“And did mothers need to be deleted from that protection in order to accomplish that goal?” Bohannan asked. Holt didn’t have a good answer but repeated his talking points about judicial overreach.

On the final day of the legislative session, State Senator Janet Petersen highlighted the danger of putting “the bodies of women and girls on the ballot” at a time when the U.S. Supreme Court is poised to strike down or eviscerate the 1973 Roe v Wade precedent.

“This is a dangerous moment,” Petersen said. “Americans and Iowans may very well see what it is like to live in a world without protections for the bodies of women and girls.”

Like several other House and Senate Democrats, Petersen noted the irony of Republicans promoting the idea of “bodily autonomy” when passing legislation to forbid mandatory face masks or COVID-19 vaccinations. “You protected your nose, your mouth, and your arm. I am simply saying, a woman’s body deserves protections as well.”

Previewing the case pro-choice advocates will make if the amendment comes before Iowa voters, Petersen said, “This constitutional amendment takes away personal decision-making power from women, taking away our freedom to make a personal decision about what is best for our bodies, our future, our families, and our pregnancies. This is about an all-out ban on abortions with no exceptions. This is about oppression–the oppression of women and girls.”

P.S.–Most politics-watchers assume that if Republicans keep control of the House and Senate after the 2022 elections and approve the abortion amendment again the following year, Iowans would vote on the language in November 2024. While most constitutional amendments have appeared on general election ballots, the state constitution allows the legislature to schedule such a vote on any date. At least two times, votes on proposed amendments to Iowa’s constitution have coincided with a June primary (the 1916 vote on women’s suffrage and the 1962 vote on replacing judicial elections with a merit-based selection system).

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What Iowa Democrats can learn from 2020 down-ballot candidates

A deep dive into the experiences of down-ballot candidates provides much food for thought for Iowa Democrats hoping to improve on last year’s dismal performance.

The authors of “Playing to Win,” released last month, are three activists with professional backgrounds in marketing. Dave Miglin was a candidate for the board of trustees for Polk County’s public hospital, Broadlawns. Kathryn Kaul-Goodman chairs the Mahaska County Democrats and ran for supervisor in that rural southeast Iowa county. Jean Kaul-Brown helped with both Miglin’s and Kaul-Goodman’s campaign and (along with Miglin) is communications co-chair for the Polk County Democrats.

I recommend downloading the full report. It’s a quick read:

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Iowa set to pay off Workday contract this month

The state of Iowa should be able to pay the remainder on its contract to acquire the Workday software system once Governor Kim Reynolds signs the final appropriations bill lawmakers approved before adjourning on May 19.

Senate File 615, the so-called “standings” bill, allocates $23.23 million from the state’s general fund to the Office of Chief Financial Officer during the current fiscal year, which ends on June 30. That money is to be used for “implementation of a new state central personnel, accounting, and budget system.”

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Scott County Democrats face huge organizing challenge

Scott County’s three Republican supervisors voted on May 25 to appoint Kerri Tompkins as the county’s new auditor, having considered no other candidates for the position, and giving members of the public no opportunity to comment.

The vacancy arose when Democratic Auditor Roxanna Moritz resigned just a few months into a four-year term. The three Republicans on the five-member board did not solicit applications for the vacancy or interview candidates. Rather, they decided to appoint Tompkins in a backroom deal, possibly violating Iowa’s open records law in the process.

The two Democrats on the Board of Supervisors wanted to hold a special election to determine Moritz’s replacement, but they didn’t have the votes to make it happen.

Local Democrats are trying to petition for a special election. But a law Republicans enacted earlier this year will make that task much more difficult.

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