Yesterday a Polk County District Court judge denied Iowa Secretary of State Matt Schultz’s request to dismiss a lawsuit over emergency rules on checking Iowa’s voter rolls for non-citizens.

Meanwhile, on Tuesday Schultz answered questions about the rules at the Iowa legislature’s Administrative Rules Review Committee meeting. His responses didn’t impress the Democratic lawmakers on that committee.

Background: the American Civil Liberties Union of Iowa and the League of United Latin American Citizens filed suit in early August over two rules Schultz enacted using emergency procedures in July.

The first voter suppression rule allows Schultz to purge Iowa’s voter registration list by comparing with it unspecified federal and state agency lists. Schultz has not specified which lists he is using. “The public has no way to be sure he’s using accurate, up-to-date information to remove voters from Iowa’s voter lists,” said ACLU of Iowa Executive Director Ben Stone. “The potential for erroneous information is huge.”

The second voter suppression rule would create a new, unreliable way for people to make voter fraud complaints to the Secretary of State’s office. The new method would skirt Iowa law by removing a requirement that the person swear to the truth of their allegation, with criminal penalties for false reports.

Attorney General Tom Miller is defending Schultz in the lawsuit and filed a motion to dismiss on the following grounds:

Schultz wrote that due to the time constraints of the upcoming general election and the statutory deadline for challenging voter registration, he determined that good cause existed to forego notice and public comment on the rules he implemented to facilitate the state’s access to the SAVE [Systematic Alien Verification for Entitlements] program.

“I determined that the rules provided a public benefit so as to waive the thirty-five day publication period,” Schultz wrote in an affidavit. “For individuals suspected of being illegally registered to vote it provides a number of safeguards to ensure that my office is proceeding on valid information, and it provides notice and opportunity for an individual to be heard prior to removal from the registration records,” he added. “For all other voters, the rules provide a transparent, uniform system for investigating and removing ineligible voters from registration records.”

According to the state’s response to the lawsuit, there was not enough time between July 17, when the U.S. Department of Homeland Security approved the state’s application for access to the SAVE database, and the November 6 general election to promulgate new rules consistent with the new federal requirements. Non-emergency rulemaking procedures take a minimum of 108 days, and typically last as long as six months.

In addition, state law prevents removal of an individual from the registration records unless a complaint is filed more than 70 days prior to the election. For the upcoming November election that deadline is August 28.

District Court Judge Mary Pat Gunderson denied the motion to dismiss, clearing the way for her court to hear the lawsuit. Jeff Eckhoff reported for the Des Moines Register,

District Judge Mary Pat Gunderson said the controversy, which stems from new rules that Schultz instituted in July under emergency rule-making procedures, falls within a special exception to legal limits on who has the ability to bring court cases in certain issues.

Iowa Supreme Court justices in 2008 refused to overturn actions by the 2004 Iowa legislature, finding that the Sioux City taxpayer who sued hadn’t satisfied requirements that she 1) be personally involved in the controversy and 2) be seriously injured by the questioned action.

According to a ruling filed by Gunderson late Tuesday, “The court in (that case) saw the absence of any allegations implicating ‘fraud, surprise, personal and private gain or other such evils inconsistent with the democratic process’ as diminishing the need to intervene in the activities of another branch of government.

“However, in this case, the court finds the petitioners do in fact make these types of allegations,” Gunderson wrote. “They specifically allege the manner in which Secretary Schultz promulgated the challenged voting rules, in secret and on an emergency basis, amounted to surprise to legislators, county auditors and all Iowans alike. Thus, here petitioners are in effect alleging a ‘perpetration of fraud or deceit’ on the public by the secretary that is ‘inconsistent with the democratic process.”

“Accordingly, the court concludes this is precisely the type of situation the exception to the standing rule was intended to address and which requires the court to intervene…’ Gunderson ruled.

This case is unlikely to be resolved before the November election. Nor will Schultz be able to remove any of the suspected non-citizens from the voter rolls, because the federal government has not given his office access to the database Schultz wants to use to confirm citizenship status.

That fact emerged from Schultz’ testimony before the Administrative Rules Review Committee on September 11. Radio Iowa’s O.Kay Henderson wrote up highlights from the meeting and posted the audio, and Sheena Dooley covered the hearing for IowaWatchdog.org.

Federal officials have yet to sign a memorandum of understanding to provide the database to Schultz’s office. But Schultz told lawmakers he expects to receive the database in the near future, although he couldn’t provide specifics.

Schultz insisted that the rules are “not meant to discriminate against anyone […] We are trying to do what’s right. We do not want to go out and accuse someone who is a citizen of the United States of not being a citizen. That’s why we are trying to be very reasonable in how we execute this rule.” He added,

“You know my wife is Latino. I speak Spanish fluently,” Schultz said. “If you know of a group of individuals, I’d be willing to speak to them in Spanish or in English…The point is not to chill the vote.”

Schultz did a two-year Mormon mission in Argentina where he learned to speak Spanish.

Others at the committee meeting rejected Schultz’s view.

“We are sincerely concerned that Secretary of State Matt Schultz’s actions are having a chilling and intimidating effect on the willingness of the Latino community to vote,” Joseph Enriquez Henry, president of the Iowa council of the League of United Latino American Citizens, told the committee.

State Sen. Thomas Courtney, D-Burlington, said he’s heard the same thing when talking with residents of his district, which is among the most heavily Latino in the state.

“They’re scared to death of this,” he told Schultz at the meeting. “They think you’re trying to stop them from voting.”

Part of the concern revolves around two letters that would be sent to registered voters identified as being noncitizens. Even if the voters were in fact citizens, they could still be intimidated out of voting by an official letter threatening them with a felony charge, the advocates said. Or, they may have difficulty obtaining the necessary documents to prove their citizenship within the timeframe required.

Schultz, in response, reiterated that the new rules and the efforts to tap the federal database are intended specifically to guard against citizens being wrongly identified as ineligible to vote.

Give me a break. Sending a person a letter giving him or her 14 days to provide proof of citizenship is clearly intimidating. Schultz’s proposed process is flawed in other ways too.

Iowa immigration lawyer Della Arriaga told the committee it can take weeks or months for naturalized citizens to collect the needed documentation to confirm their status. The rules also don’t address children whose parents are in the military and born abroad or those adopted from other countries. It addresses only those who come in as a legal immigrant, she said.

“This proposal doesn’t make sense,” Arriaga said. “It’s based on a person’s A number. Not all immigrants have A numbers.”

Reading the reports on Tuesday’s hearing, I was surprised to learn that Schultz is using Help America Vote Act money to fund these efforts. An agent from the state Department of Criminal Investigation was reassigned to the Secretary of State’s Office to handle suspected voter fraud, at a cost of approximately $140,000 per year. Schultz said on Tuesday that “he has the authority to spend that federal ‘Help America Vote Act’ money on the voter fraud investigation.”

Later, Schultz told reporters: “I can tell you it’s better than the $100,000 party our previous secretary of state used HAVA money for.”

Schultz is alluding to events then Secretary of State Chet Culver organized in 2005 to celebrate the 40th anniversary of the Voting Rights Act and the 85th anniversary of women’s suffrage. A federal audit later questioned the use of HAVA funds for that purpose. Secretary of State Mike Mauro had to clean up the mess in 2010.

In a written statement released after Tuesday’s meeting, Senator Courtney accused Schultz of “misusing federal funds” to pay for a “voter purge campaign.”

The chair of the Senate’s Government Oversight Committee today questioned Iowa Secretary of State Matt Schultz’s use of federal funding for his high-profile voter purge campaign.

During an appearance this afternoon before the Legislature’s Administrative Rules Review Committee, Schultz admitted that instead of using federal Help America Vote Act funding for its intended purposes (especially upgrading voting machines and poll worker training), he is using the funds on a controversial effort to purge Iowa’s voter rolls in the final 55 days of the 2012 campaign.

“The Help America Vote Act was passed 10 years ago to provide funding to all states to make voting easier and to increase access to polls,” said Senator Tom Courtney of Burlington. “It is stunning that Iowa Secretary of State Matt Schultz is instead using Iowa’s funds for an 11th hour attempt to purge Iowa’s voter rolls.”

“Secretary of State Schultz should immediately stop using Help America Vote Act funding for this misguided campaign that is only serving to scare qualified voters away from the polls.”

It does seem like a stretch to use HAVA money to look for reasons to remove Iowans from the voter rolls. More likely than not, these “questionable” registered voters are in fact citizens who have been naturalized since 2008. I sought further comment from the Secretary of State’s office, and Schultz’s communications director Chad Olsen provided this explanation on September 12:

Clearly we believe that the expenditure is allowable; one of the intended and stated purposes for HAVA funding is for expenditures to improve the administration of federal elections. The DCI agent is working on many different issues including double voting, felons casting ballots, and ineligible voters. As everyone repeatedly stated in yesterday’s hearing, we all agree that only eligible citizens should be voting. It’s interesting that the follow up is, essentially, that we don’t want you to do anything about it.

During the Administrative Rules Review Committee meeting, Democratic State Senator Jack Kibbie “questioned why Schultz failed to bring the issue to lawmakers during the latest session,” Dooley reported for IowaWatchdog.org.

“I hear what’s going on around the country and then Iowa wants to join in at the last minute,” said Sen. Jack Kibbie, D-Emmetsburg. “Whether you call it suppressed voting or not, none of the county auditors I talked to feel there have been illegal votes in the past.”

Indeed, several Republican county auditors quoted in this article were skeptical about Schultz hiring a DCI agent to investigate this matter full-time.

Any relevant comments are welcome in this thread.