CORRECTION: The Administrative Rules Review Committee will consider this matter during its next meeting on September 11, due to a scheduling conflict with the Secretary of State’s Office. I enclose below a statement from Joe Royce, the staff to the Administrative Rules Review Committee.

Secretary of State Matt Schultz declined an invitation to speak yesterday at a regularly scheduled meeting of the Iowa legislature’s Administrative Rules Review Committee. Lawmakers had invited Schultz Sarah Reisetter of the Secretary of State’s office to discuss new voter list maintenance procedures, which were not adopted through the normal rulemaking process and have already prompted a lawsuit.

Statement received on August 15 from Joe Royce, the staff to the Administrative Rules Review Committee:

Senator Kibbie asked to place the following rules on the August agendum: “Investigating and resolving complaints”, rules 21.100, 28.5

I did so, I did not contact the Secretary instead I sent Sarah Reisetter the following E-mail:

Committee will hold its regular, statutory meeting on Tuesday, August 14, 2012, beginning at  9 a.m. in Room 116, State Capitol, Des Moines, Iowa. The following Secretary of state rule will be reviewed atT 11:15:

11:15

  SECRETARY OF STATE[721]

Special review by Kibbie

Investigating and resolving complaints, 21.100, 28.5  Emergency ARC 0272       8/08/12

Ms. Reisetter then contacted me by telephone, noting that she could not attend the meeting. She asked if she could send someone else or if the review could be re-scheduled to September. I immediately contacted Senator Kibbie; I believed Ms. Reisetter was essential to this review and suggested re-scheduling the meeting until September. The Senator agreed and I modified the ARRC agendum to read:

—-

SECRETARY OF STATE[721] postponed until September

Special review by Kibbie

Investigating and resolving complaints, 21.100, 28.5  Emergency ARC 0272       8/08/12

At no time did the Secretary of State’s office decline to attend the meeting, there was a scheduling conflict, which was resolved by moving the review to the September ARRC meeting. That review will now be scheduled for September 11, 2012 in statehouse Room #116.

UPDATE: The statement Iowa Senate President Jack Kibbie released on August 14 failed to provide this context, leaving the impression that Schultz had refused to explain himself to legislators. I regret passing along that impression to Bleeding Heartland readers.

I still disagree with Schultz’s emergency rulemaking and believe his obsession with phantom “voter fraud” could easily interfere with some Iowans’ right to vote. Schultz would do well to take Kibbie’s advice and work more closely with the county auditors.

ORIGINAL POST CONTINUES BELOW:

The Administrative Rules Review Committee meets every month “to provide legislative oversight on state agency rule making,” even when the legislature is not in session. Five Iowa House and five Iowa Senate members serve on this committee: three from the majority party in each chamber, and two from the minority party in each chamber.

This month’s Administrative Rules Review Committee meeting was scheduled for the morning of August 14. The Iowa Senate released this statement yesterday afternoon (emphasis in original).

“Secretary of State’s actions undermine the voting rights of Iowans”

Prepared remarks by Senate President Jack Kibbie for today’s legislative committee meeting

As a longtime member of the Administrative Rules Review Committee, I am very disappointed with Iowa Secretary of State Matt Schultz’s handling of the most important duty of his office: ensuring the right of Iowans to vote.

The Secretary recently took the unusual step of promulgating new emergency rules affecting elections.  We asked him to attend the Rules Committee meeting today to discuss those rules and to explain why his office failed to follow the normal procedures which would have allowed public review before those rules were adopted.

He declined to publicly defend his actions.

Protecting the right of Iowans to participate in the November 6th General Election is the greatest responsibility Secretary Schultz will face since his own election in 2010.  If he has evidence that someone has broken Iowa’s election laws, the law requires him to immediately turn over that evidence to the appropriate County Attorney for investigation and prosecution. If not, he should immediately withdraw his emergency rules and abandon this half-baked scheme.

A lawsuit filed against the Secretary of State raises serious questions about the legality of his efforts, whether he is threatening the due process of legal voters, and whether it could disenfranchise Iowans who are legally registered to vote. Questions have also been raised about whether his efforts violate federal election laws.1

In the future, Secretary of State Schultz should work more closely with the people who actually have the knowledge and experience to administer free and fair elections: Iowa’s 99 County Auditors.  I am thankful that County Auditors put the right to vote above partisan politics.

Secretary of State Matt Schultz would save himself and the state of Iowa additional embarrassment if he did the same.

1) Relevant portion of the US Justice Department FAQ on the National Voter Registration Act of 1993

37.  Does Section 8 impose any time restrictions on States as to when a general list maintenance program can be conducted?

Yes. Section 8 requires States to complete any program the purpose of which is to systematically remove the names of ineligible voters from the official list of eligible voters not later than 90 days prior to the date of a primary election or general election for federal office. This 90 day deadline applies to state list maintenance verification activities such as general mailings and door to door canvasses. This 90 day deadline does not, however, preclude removal of names at the request of the registrant, removal due to death of the registrant, removal due to criminal conviction or mental incapacity of the registrant as provided by State law, nor does the deadline preclude correction of a registrant’s information.   http://www.justice.gov/crt/abo…

Permalink: http://www.senate.iowa.gov/dem…

The American Civil Liberties Union of Iowa and the League of United Latin American Citizens filed a lawsuit last week challenging what they call “new voter suppression rules.” The Secretary of State’s office released this statement from Schultz on August 9:

(Des Moines)-On Wednesday, August 8, 2012, a suit was filed against the Iowa Secretary of State regarding procedures for removing ineligible non-citizens from voter registration rolls in Iowa. Secretary Schultz believes the concerns are unfounded and that the rules actually enhance the due process available to anyone subject to removal. Secretary Schultz made the following statement:

“Working with the Iowa DOT, my office has identified more than a thousand registered voters who are potentially not citizens of this country. The federal government maintains a database called the Systematic Alien Verification for Entitlement (SAVE). SAVE maintains information about an individual’s immigration status, including whether they have become naturalized as a citizen and, if so, when. After seeking access to this database in order to verify the citizenship status of these individuals, we finally were informed in late July that the federal government would give the State of Iowa access to that database to verify citizenship and that Iowa would be required to submit a new application. As a result we immediately enacted administrative rules to clarify to the federal government, and the public, what legal process we would use to remove non-citizens from the voter rolls. The new rules enhance the due process available to individuals identified through this effort.

To be as fair as possible in this process, we are giving every individual a hearing prior to being removed from the voter rolls. No county auditor, I repeat, no auditor has been directed to remove any person’s name from the voter registration rolls for being a non-citizen. There is no purge of non-citizens taking place in Iowa and to say otherwise is a misrepresentation of the facts.

Our only intent has been to work for integrity and honesty in elections. That is what the people of Iowa hired me to do and I take it as a serious responsibility of this office.”

It’s encouraging to know that county auditors aren’t being told to strike names off voter lists (yet). But Schultz did not explain why his agency chose not to enact these rules through the normal process, which involves several levels of review and a public comment period.

Notice of Intent to Adopt Rules (Iowa Code §17A.4 )

State agencies often draft administrative rules or propose to modify or change existing administrative rules. Rules may be proposed because of new laws, or because changes are needed to existing programs or simply to keep current with federal regulations. Some programs and responsibilities that are carried out by state agencies require that state laws be at least as strict as federal laws.

Proposed rules must be formatted in a certain way as outlined in Iowa Code, Chapter 17A (Iowa Administrative Procedure Act). The most important thing to know is that old rule language is shown with a strike through and the proposed rule language is shown using underlined text. In the Iowa Administrative Bulletin, new language is indicated by italics, rather than underlining.

Proposed new rules are reviewed and approved by the administrative head of each agency. The rules are then filed in an action which is called the “Notice of Intended Action.” The rules are filed with the Governor’s Administrative Rules Coordinator. The Administrative Rules Coordinator is responsible for coordinating all rules that are proposed by the Governor’s executive branch agencies. This part of the process usually takes about fifty to sixty five days to complete.

Iowa Administrative Bulletin (IAB)

Next the proposed rule is published in the Iowa Administrative Bulletin (IAB) about nineteen days after the Administrative Rules Review Coordinator has received the rules. The IAB publications are available on the Internet (http://www.legis.state.ia.us/IAC.html) and in paper form in most public libraries.

Public Comment Period and Public Hearings

Concurrent with the publication of the “Notice of Intent to Adopt Rules” in the IAB the first twenty days of this period is reserved for the public to comment on any aspect of the proposed rules. The state agency may decide to extend public comment period at their discretion. A public hearing by the state agency to take comments is not required unless at least twenty-five persons demand a hearing. […]

At a public hearing people are encouraged to submit their comments in writing for the record, and orally if they chose. […] Any individual or organization desiring to comment on the proposed rule may submit comments from the time the Notice of Intent is filed through the public comment period. […]

Agency Adopts Rules

The administrative head of the state agency may adopt the proposed rules not less than thirty-five days from time that the “Notice of Intended Action” was first published in the IAB.

The rules must be “adopted” by the state agency so it can take the next step and file the “Adopted and Filed” version of the rules with the Governor’s Administrative Rules Review Coordinator for a second time. This part of the process takes about nineteen days. Once this is completed the rules are again published in the IAB and become a part of the IAC. The first possible day that the rules can become effective is thirty five days after they published for the second time.

Legislative Review

At some point during this process, the proposed rule is reviewed by the legislature’s Administrative Rules Review Committee (ARRC). Generally, the proposed rule is evaluated by the ARRC after the “Adopted and Filed” version is published in the IAB.

The ARRC does have the discretion to object to a rule. (If objection does occur this effectively eliminates the presumption that the rule was valid in the event the rule is taken up in a subsequent judicial review.) The ARRC may also delay the effective date of a proposed rule pending additional review by the General Assembly. Although it does not occur frequently the Iowa General Assembly has the ability to rescind any administrative rule by joint action of both the Senate and the House chambers. This oversight power is held by only a few state legislatures.

I assume Schultz used emergency rulemaking because the typical process would not leave enough time to implement new voter list maintenance before the 2012 general election. The desire to avoid drawing public attention to the proposed changes may also have played a role.

I jokingly refer to the Administrative Rules Review Committee as “the place good rules go to die,” because lawmakers have often tried to use the review process to block environmental regulations. But whether or not you share the lawmakers’ priorities, the Iowa Code provides for legislative oversight of administrative rulemaking. Avoiding the questions of Iowa House and Senate members makes Schultz’s emergency rulemaking look even more like an overreach by the executive branch. CORRECTED ABOVE: A representative of the Secretary of State’s office will appear before the legislative rules review committee in September.

On a related note, Governor Terry Branstad’s office has not responded to my request for comment on the Secretary of State’s Office taking a Division of Criminal Investigation agent off the major crimes desk in Council Bluffs in order to investigate suspected voter fraud full-time. The Associated Press reported on that hiring a few days ago in this must-read article. County auditors “were introduced to Special Agent Daniel Dawson and informed of his new role during a training meeting” on August 8 in Cedar Rapids.

DCI assistant director Charis Paulson said Friday that Dawson was reassigned to Schultz’s office after the secretary of state asked DCI for help investigating voter fraud. She said Schultz’s office will reimburse the Department of Public Safety for Dawson’s salary, benefits, vehicle and other expenses. She said didn’t immediately have the full price tag, but said a rough estimate would be $280,000 over two years. The arrangement will be re-evaluated then.

Paulson said she has been told DCI is looking into about 2,000 possible voter fraud violations, and emphasized that decisions on whether to bring criminal charges remain would remain with county prosecutors.

Dawson had been assigned to the major crimes unit in Council Bluffs, a position Paulson said will be left open. […]

Jones County auditor Janine Sulzner, a Republican based in Anamosa, said it was “extremely unfortunate” that auditors had not been informed earlier of Dawson’s hiring. She called the number of voters under investigation “a little suspicious” and said auditors should be involved since they know many of their residents.

Ken Kline, another Republican who serves as Cerro Gordo County auditor in Mason City, said he had many questions about the hiring and what Dawson will investigate. He said he believed many of the cases under review would turn out to be simple data errors.

Iowa may be a low-crime state, but I find it hard to believe that the public is best served by putting Agent Dawson to work investigating crimes that probably haven’t even occurred.

By and large, Iowa’s county auditors are not on the same page as Schultz when it comes to alleged voter fraud. In 2010, dozens of auditors from both parties endorsed then Secretary of State Mike Mauro, a Democrat. The auditor from Schultz’s home county was part of that group. During the 2011 legislative session, as the newly-elected secretary of state lobbied for new photo identification requirements, the Iowa State Association of County Auditors voted to oppose photo ID legislation. Schultz ignored their collective judgment, just like he ignored the Administrative Rules Review Committee’s invitation this week.

Share any relevant thoughts in this thread.

AUGUST 17 UPDATE: The Des Moines Register’s editorial board is on target in today’s column.

Under Schultz’s new procedure, alleged non-citizens whose names turn up in the cross-check would get a letter giving them 14 days to dispute the citizenship challenge or ask the local county auditor to cancel their voter registration. For good measure, the letter will inform recipients that illegally registering to vote is a class D felony. That alone could prompt some legitimately registered voters to withdraw their registration to avoid risking criminal prosecution.

Such a fundamental change in Iowa voting procedure that has the potential to disenfranchise legitimate voters should have been thoroughly considered, debated in public and considered by the Iowa Legislature. Instead, Schultz published the new rules in an obscure state bulletin the same day they took effect. There was no public notice, no opportunity for discussion, and by using an “emergency” procedure he bypassed the Legislature’s Administrative Rules Review Committee.

What emergency? Schultz has been in office close to three years, yet he waits until a presidential election is three months away to challenge people’s voter registrations? By the time the cross-checking is completed, letters go out and registered voters exercise their right to appeal, the election could have come and gone. That is wrong.

Iowa’s 99 elected county auditors, the primary overseers of elections down to the precinct level, officials who are both Republicans and Democrats, have opposed earlier election “reform” proposals by Schultz. The elections they manage are neighborhood events, where polling workers are voters’ friends, neighbors and relatives. This process has worked flawlessly for a century and a half. Never before has its legitimacy, fairness or accuracy been seriously questioned.