It’s time for an update on the legal conflict between Iowa Secretary of State Matt Schultz and voter rights advocates over Schultz’s efforts to remove “potential non-citizen registrants” from Iowa voter rolls. The American Civil Liberties Union of Iowa and the League of United Latin American Citizens of Iowa are suing to block the rule and won an important court victory yesterday. Follow me after the jump for background and details.

The conflict began during the summer of 2012, when Schultz sought to implement two emergency rules that would make it easier to remove Iowans from voter rolls. The ACLU of Iowa and LULAC of Iowa quickly filed a lawsuit, alleging “voter suppression” for various reasons. A Polk County district court judge issued a temporary injunction stopping the Secretary of State’s Office from implementing those rules before the 2012 general election.

Before that case could be considered on the legal merits, Schultz withdrew one of the rules being challenged, which would have altered procedures for filing a complaint to challenge someone else’s voting status. The secretary of state also proposed slightly altered the other rule, which involved checking Iowa voters against the Systematic Alien Verification Entitlement (SAVE) database administered by the U.S. Department of Homeland Security. From a November 28, 2012 press release:

The rules will be amended to clarify the database being referenced is the federal Department of Homeland Security database, and the process the Office will use to contact potential non-citizen registrants. Significantly, the length of time provided registrants to respond to a request from the Office of the Iowa Secretary of State has been extended from 14 to 30 days. There will also be a second request, with an additional 30 days to respond if no response is received from the first letter. Furthermore, any registrant receiving a letter from the Office requesting verification of citizenship status can request more time, as needed, to comply with the request.

You can read the full text of that proposed rule here (pdf). The procedure is still largely the same: if a registered Iowa voter’s citizenship status is questioned after officials check the SAVE database, letters will be sent to that voter, and the burden will be on him or her to prove citizenship.

Schultz abandoned efforts to enact the rule through emergency means. During the rulemaking period, several groups objected to the citizenship verification rule, including “the League of Women Voters of Iowa, Interfaith Alliance of Iowa, the Midwest Chapter of the American Friends Service Committee, and the Iowa Chapter of the National Association of Social Workers.” Nevertheless, the new rule went into effect in March 2013.

The ACLU of Iowa and LULAC immediately renewed their lawsuit, charging that the rule would still “wrongly restrict voting by qualified Iowans.” The rule allows the Secretary of State’s Office to use federal databases to generate a list of potential non-citizens, who are then contacted and forced to prove their citizenship in order to stay on the voter rolls. The ACLU and LULAC contend that

the databases contain numerous points of error in information, were never designed to cross-check voters, contain insufficient data to do so comprehensively, and put the burden on voters to prove their citizenship if they are identified, rightly or wrongly. Even the federal government agency that runs the SAVE databases recommended against using it to cross-check voters. Obtaining proof of citizenship to correct errors in the SAVE system can cost voters hundreds of dollars, in-person interviews with the federal government, and lengthy delays. Obtaining certificates of naturalization for the case of a new U.S. citizen, for example, can take six months to a year and cost hundreds of dollars. […]

The ACLU and LULAC say that the Secretary of State was never authorized by the Iowa legislature to put his Voter Removal Rule forward, and that it will erroneously deprive qualified citizens in Iowa of their right to vote. The ACLU and LULAC cite problems with running the registered voter lists through the federal SAVE system, as well as a lack of procedural checks to protect voters once they are identified.

When the rule went into effect, Schultz did not have access to the federal database, but his office and the U.S. Department of Homeland Security reached an agreement (pdf) in August to allow the Secretary of State’s Office to use the Systematic Alien Verification for Entitlements (SAVE) Program.

Meanwhile, the Iowa Attorney General’s Office, defending Schultz, failed to convince Polk County District Court Judge Scott Rosenberg to dismiss the lawsuit filed by the ACLU and LULAC. The litigants have asked the court to block the rule permanently. Judge Rosenberg issued a temporary injunction yesterday that will prevent Schultz from implementing the rule until the case can be considered next year. Jason Noble reported for the Des Moines Register,

“Iowa voters should take heart, because the court order today will prevent the Secretary of State from using a flawed and unreliable system to purge voters or otherwise intimidate them while the case moves forward,” ACLU of Iowa Executive Director Ben Stone said.

In a statement, Schultz said his office was “disappointed” by the order, but would abide by it.

“This is just a temporary order and we look forward to having a final resolution after the hearing scheduled in March,” Schultz said in the prepared statement. “We believe that the rule provides safeguards to protect the voting process and I will continue fighting to ensure the integrity of Iowa’s election system in common-sense ways.”

The Register posted Judge Rosenberg’s eight-page ruling. He denied the ACLU’s and LULAC’s request for summary judgment on Schultz’s authority to promulgate this rule, because “summary judgment is available in judicial review only when the facts of the case are not in dispute. […] While the facts regarding Schultz’s statutory authority are undisputed, other facts of the case remain in dispute.”

Explaining his decision to grant a temporary injunction, Judge Rosenberg referred to last year’s ruling by District Court Judge Mary Pat Gunderson. Rosenberg wrote,

This Court previously stayed implementation of the emergency rules, finding the Petitioners will suffer irreparable injury if the temporary injunction is not granted, other parties will not be harmed by the temporary injunction, and the public interest supports the temporary injunction. […] While Schultz amended the permanent version of Rule 721-28.5, the permanent and emergency versions follow the same basic procedure to identify and remove registered voters. Therefore, permanent Rule 721-28.5 presents many of the same issues as its emergency counterpart […].

The judge also referred to “the likelihood the Petitioners will prevail on the merits” when the district court considers the case next year. Because Iowa “statutes and case law do not present clear answers” to questions about Schultz’s authority to promulgate rules on removing voters from rolls, there is “a sufficient likelihood” the ACLU and LULAC will eventually prevail on the merits. Judge Rosenberg emphasized that his order of a temporary injunction “is not a determination on the merits of the Petitioners’ claims.”

I have no idea how the court will eventually rule on Schultz’s authority to issue this rule without legislative action. However, I suspect the ACLU and LULAC will be able to convince the court that the rule would likely intimidate and potentially disenfranchise eligible voters.

The rule in question allows Schultz’s office to cross reference self-identified non-citizens on voter registration rolls with the Systematic Alien Verification for Entitlements (SAVE) program, which the Department of Homeland Security operates. The SAVE program retains information on immigrants in the country on a temporary visa. If a non-citizen on the SAVE list is also listed as a registered voter a letter is sent to the registrant telling him or her that he or she might be illegally registered to vote. If the voter does not respond to that first letter, a second letter is sent reminding “the individual that registering to vote without citizenship is a felony,” according to Schultz’s office. After the second letter a voter might have to appear before a hearing to present evidence on voter eligibility.

“If the person cannot prove citizenship after this process, the office will forward the information to the county and after their registration has been challenged, the county auditor must hold a hearing to determine the eligibility of the voter,” also according to Schultz’s office. […]

The flaw in Schultz’s system, The Ohio State University Moritz College of Law Professor Daniel Tokaji said to TPM on Thursday, is that the SAVE program was not designed for keeping track of legal voters. Tokaji stressed that he had not examined the case closely but said that the type of cross-referencing Schultz wants to do under the rule creates the possibility that legal voters are mistakenly purged from voter rolls.

“There are just a lot of mistakes in these databases including voter registration rolls including mistyped addresses” or other basic information, Tokaji said.

Any relevant comments are welcome in this thread.

P.S. Democratic candidate for secretary of state Brad Anderson has hammered Schultz on this issue, saying, “If one single voter feels intimidated or one single voter feels disenfranchised, then you are not doing your job.” Anderson argues that Iowa “can do better by modernizing the office and ensuring election integrity without disenfranchising any eligible Iowa voters.”