Polk County District Court Chief Judge Arthur Gamble on Monday dismissed a lawsuit that challenged Iowa’s restrictions on felon voting and procedure for regaining voting rights after a felony conviction. Kelli Jo Griffin filed the lawsuit last November, having previously been acquitted on perjury charges related to registering to vote and casting a ballot in a local election. Griffin did not realize she was ineligible to vote because of a prior drug conviction. The American Civil Liberties Union of Iowa is representing her in the case, which claims Iowa law and an executive order Governor Terry Branstad issued in January 2011 unconstitutionally restrict the plaintiff’s fundamental right to vote.

A plurality of three Iowa Supreme Court justices indicated last April that they do not believe all felonies rise to the level of “infamous crimes,” which under the Iowa Constitution justify revoking citizenship rights. But that opinion did not strike down current Iowa law, which holds that any felony conviction leads to the loss of voting rights. Chief Judge Gamble noted in his ruling that he is bound by precedent on felon voting cases “until a majority of the Iowa Supreme Court” rules otherwise.

The chief judge also determined that Branstad’s executive order does not unconstitutionally restrict Griffin’s voting rights, because the paperwork and fees required are “not an unreasonable burden for a felon to shoulder.” His conclusions don’t acknowledge certain realities about the arduous process Branstad established, which “made Iowa one of the most difficult states in the nation for felons who want to vote” and create more hurdles for low-income Iowans than for those with financial resources. I enclose more thoughts on that angle below, after excerpts from Gamble’s ruling.

The ACLU will appeal the District Court’s decision to the Iowa Supreme Court. Ever since an unlikely chain of events opened the door for the high court to re-examine felon voting rights, it’s been obvious some non-violent offender like Griffin would bring a test case resembling this one. The big question now is whether Justice Brent Appel, who recused himself from last year’s related case, will align with his three colleagues who appear ready to declare that certain felonies are not “infamous crimes.”

Chief Judge Gamble’s ruling summarized the main arguments for each side on pages 1 and 2:

First, Griffin claims the statutes, regulations, forms, and procedures which disqualify her from registering to vote and voting constitute denial of her right to vote in violation of the Iowa Constitution because her prior felony conviction for delivery of less than 100 grams of cocaine is not among the category of felonies which qualify as “infamous crimes” under article II, section 5 of the Iowa Constitution; and

Second, Griffin claims the burden on her fundamental right to vote in Iowa resulting from those statutes, regulations, forms, and procedures that bar her from voting without a grant by the Governor of a restoration of her right to vote, violate her right to substantive due process assured under article I, section 9 of the Iowa Constitution because they fail to meet the rigors of strict scrutiny analysis.

The Respondents, Iowa Secretary of State Paul Pate and Lee County Auditor Denise Fraise, seek summary judgment upholding the constitutionality of Iowa’s voting scheme including Iowa Code section 39.3(8) defining the constitutional term of “infamous crime” as a felony under Iowa or federal law.

Pages 3 through 5 cover Griffin’s criminal record, the changing Iowa landscape for felons to regain their voting rights, and the events that led to her perjury trial last year.

Beginning on page 5, Chief Judge Gamble discussed voting rights and last year’s Iowa Supreme Court ruling.

Article II, section 1 of the Iowa Constitution assures the right of suffrage to every citizen of the United States who is 21 years of age 1 and an Iowa resident according to the terms laid out by law. However, article II, section 5 provides, “a person convicted of any infamous crime shall not be entitled to the privilege of an elector.” The Iowa Constitution does not define the term “infamous crime.” The Iowa General Assembly defined “infamous crime” in Iowa Code section 39.3(8) as “a felony as defined in section 707.7, or an offense classified as a felony under federal law.” Griffin asserts that Iowa Code section 39.3(8) violates article II, section 5 of the Iowa Constitution as applied to her and that her crime of conviction, Delivery of 100 Grams or Less of Cocaine, a Class C felony, is not an “infamous crime” so as to disenfranchise her.

Griffin relies on the plurality opinion of the Iowa Supreme Court in Chiodo v. Section 43.24 Panel, 846 N.W.2d 845 (Iowa 2014) to support her position. Chiodo was a judicial review action of the decision of the state elections panel overruling an objection to the candidacy for election to the Iowa Senate of an individual who had been convicted of Operating While Intoxicated, second offense, an aggravated misdemeanor.

Gamble then reviewed the key points from the Chiodo case. From pages 8 and 9:

Thus, the Chiodo plurality declined to conclusively articulate a precise definition of “infamous crime” to determine if a voter is disenfranchised by a criminal conviction. The plurality could “only conclude that the crime must be classified as particularly serious, and it must be a crime that reveals that voters who commit the crime would tend to undermine the process of democratic governance through elections.” Id. The plurality recognized that felonies are serious crimes and held that since OWI, second offense, was an aggravated misdemeanor, it did not disenfranchise the voter under this nascent standard because “[i]t is a crime that does not require specific criminal intent and lacks a nexus to preserving the integrity of the election process.

Id. at 857.

The plurality opinion ended with the following caveat:

Our decision today is limited. It does not render the legislative definition of an “infamous crime” under Iowa Code section 39.3(8) unconstitutional. We only hold OWI, second offense, is not an “infamous crime” under article II, section 5, and leave it for future cases to decide which felonies might fall within the meaning of “infamous crime[s]” that disqualify Iowans from voting.

On pages 11 and 12, Gamble reviewed the main arguments for the plaintiff and the defense:

Therefore, at least as applied to felony convictions, Blodgett and Haubrich, both decided under article II, section 5 of the Iowa Constitution, were not overruled by a majority of the Iowa Supreme Court in Chiodo.

Nevertheless, Griffin relies on Chiodo to support her claim that, Delivery of 100 Grams or Less of Cocaine, a Class C felony, is not an “infamous crime” under article II, section 5 of the Iowa Constitution. Griffin recognizes her crime of conviction is a serious felony offense under the first element of the nascent standard. However, as to the second element, Griffin argues Delivery of Cocaine is not an “infamous crime” because it lacks a nexus to preserving integrity the electoral process since it would not tend to undermine the process of governance through elections like the crimes of elections fraud, bribery, perjury, and treason. Id. at 857. In addition, like OWI, Delivery of Cocaine is a general intent crime that does not have an element of specific intent. Id. at 856. Furthermore, Griffin argues Delivery of Cocaine is not a crimen falsi offense or a like offense involving the charge of falsehood that affects the public administration of justice. It is not a crime of dishonesty like forgery, embezzlement, theft or criminal fraud. Finally, Griffin asserts Delivery of Cocaine is not a crime of moral turpitude like arson, rape or murder that would be understood by the founders as a particularly heinous crime. Thus, under any standard that might be adopted by the Iowa Supreme Court, and particularly the nascent standard enunciated by the plurality in Chiodo, Griffin believes that Delivery of Cocaine is a crime of addiction and not an infamous crime that disenfranchises her under the Iowa Constitution.

Secretary Pate and Auditor Fraise contend that Iowa Code section 39.3(8) defining “infamous crime” as a felony crime is consistent with article II, section 5 of the Iowa Constitution as interpreted in Blodgett and Haubrich. They note that the Chiodo court did not hold that the legislative definition of “infamous crime” under Iowa Code section 39.3(8) is unconstitutional. Id. at 857. Secretary Pate and Auditor Fraise contend the nascent standard of the Chiodo plurality is unworkable for election officials as well as potential voters and will lead to a flood of litigation to adjudicate the voting rights of individual convicted felons on a case-by- case basis. They believe the legislature is in the best position to draw the appropriate line of infamy for purposes of voting rights. Commonwealth ex rel. Att’y Gen. Corbett v. Griffin, 946 A.2d 668, 675 (Pa. 2008). Finally, under any standard, Secretary Pate and Auditor Fraise argue that the grave societal costs of felonious narcotics distribution render it an “infamous crime” that disenfranchises the perpetrator.

Chief Judge Gamble observed on pages 12 and 13,

Under the analysis adopted by the Chiodo plurality, it would be up to the courts to determine the infamy of a crime rather than the legislature by statute. Perhaps this case is one of those “future cases to decide which felonies might fall within the meaning of ‘infamous crime[s]’ that disqualify Iowans from voting” that will lead to the development of a new constitutional standard.” Chiodo, 846 N.W.2d at 857. This case raises many difficult questions that would have to be decided by judges under the nascent standard touching upon whether the Delivery of Cocaine tends to undermine the process of democratic governance through elections. Do the votes of convicted drug dealers tend to undermine the process of democratic governance through elections? Is Griffin’s crime of Delivery of Cocaine less of a threat to the democratic process than a person convicted of felonious Possession of Cocaine with Intent to Deliver, a specific intent crime? Given the societal costs of narcotics distribution, is Delivery of Cocaine less morally repugnant than crimes against persons? Are drug dealers more honest and trustworthy voters than perpetrators of crimen falsi?

These questions and more would have to be answered by Iowa courts on a case-by-case, felony-by-felony, basis under the nascent standard the of Chiodo plurality in order to determine whether the crime is such an “affront to democratic governance or the public administration of justice such that there is a reasonable probability that a person convicted of such a crime poses a threat to the integrity of elections.” Snyder, 958 N.E.2d at 782. Unfortunately, judges would have little guidance for these adjudications because as Justice Mansfield warned in his concurring opinion in Chiodo, “this standard is essentially no standard at all and will lead to more voting and ballot cases as we sort out the implications of today’s ruling.” Chiodo, 846 N.W.2d at 860.

Gamble seems inclined to agree with Justice Mansfield’s concurring opinion in the Chiodo case, but regardless of his view on the matter, he made clear in Monday’s opinion that he isn’t willing to break new ground.

Concerning electors like Griffin, who have been convicted of a felony, Blodgett and Haubrich retain precedential value until they are overruled by a majority of the Iowa Supreme Court. The plurality opinion in Chiodo is a strong signal that the moorings of Blodgett and Haubrich may not be secure for long. Nevertheless, district judges are tied by the lines of precedent. […]

The three concurring and dissenting justices in Chiodo would follow Blodgett and Haubrich in determining whether a felony is an infamous crime under article II, section 5 of the Iowa Constitution. Blodgett and Haubrich “effectively hold that felons cannot vote or hold elective office under the Iowa Constitution. And for that proposition, I think they remain good law.” Chiodo, 846 N.W.2d at 861 (Mansfield, J., concurring). I think so too. Statutes are “cloaked with a presumption of constitutionality. State v. Thompson, 836 N.W.2d 470, 483 (Iowa 2013). Chiodo did not hold Iowa Code section 39.3(8) unconstitutional. This Court concludes that convicted felons, including Kelli Jo Griffin, remain disenfranchised under section 39.3(8) and the “infamous crimes” clause of article II, section 5 of the Iowa Constitution until a majority of our highest court holds otherwise.

Beginning on page 14, Gamble discussed Griffin’s due process claims, largely related to the process Branstad established for felons to regain their voting rights. He didn’t find the arguments convincing:

Griffin argues that by including all felonies, Iowa Code section 39.8(3) is not narrowly tailored to accomplish a compelling governmental interest because it unnecessarily blocks thousands of constitutionally qualified Iowa electors of their right to vote. Griffin complains that convicted felons must apply to the Governor of Iowa for restoration of their right to vote under Executive Order 70 and that the application process is an unconstitutional burden on her franchise. She contends the nature of this heavy burden is illustrated by the low numbers of potentially eligible Iowans who have applied for a restoration of rights. See Ryan J. Foley, “Iowa Governor Restores More Felons’ Voting Rights,” WASH. TIMES, Jan. 14, 2014, http://tinyurl.com/ob2qkkn (from 2011 to 2013, an estimated 25,000 Iowans discharged their sentences, but only 40 regained their voting rights). Accordingly, Griffin concludes these statutes and regulations do not meet the rigors of strict scrutiny due process analysis under the Iowa Constitution and are unconstitutional as applied to her.

The Court concludes section 39.8(3) and Executive Order 70 are reasonably calculated to facilitate and secure the right to vote in Iowa. The objective of the statute and regulations are to protecting the integrity of the ballot and insuring the orderly conduct of elections. Election officials must have a predictable standard for determining the qualifications of voters. The disenfranchisement of convicted felons including individuals convicted of drug trafficking offenses like Griffin protects the integrity of the ballot for other citizens participating in the democratic process.

Further, the Governor’s restoration of rights process is not an unconstitutional burden. The Governor’s authority to restore the voting rights of convicted felons is rooted in Article IV, section 16 of the Iowa Constitution. See Haubrich, 83 N.W.2d at 455. Iowa Code section 914.1 provides, “The power of the Governor under the Constitution of the State of Iowa to grant a … restoration of rights of citizenship shall not be impaired.” Through the restoration of rights process, the Governor can administratively determine on a case-by-case basis whether the vote of a particular individual represents a threat to the integrity of the democratic process through elections. For example, the vote of an individual like Griffin who has rehabilitated herself following a crime of addiction may not threaten the integrity of the democratic process whereas the votes of people convicted of the same crime who may be gang members or drug dealers with ties to international drug trafficking might. It would be far more burdensome for potential voters and far more confusing for election officials if judges were required to decide such questions on a case-by-case basis through the process of litigation. The administrative process established by the Governor is more suited to this type of determination.

Griffin has chosen not to access the Governor’s restoration of rights process because of paperwork requirements. She would have to demonstrate that she has fully paid or is current on any payments for court-imposed fines, fees and restitution and obtain and provide a copy of her Iowa Criminal History Record from the Iowa Division of Criminal Investigation at a cost of $15.00. But this is not an unreasonable burden for a felon to shoulder to have her citizenship rights restored. In fact, it is less burdensome than litigation.

The Court concludes that Iowa Code section 39.8(3) and Executive Order 70 are narrowly tailored to accomplish a compelling governmental interest of facilitating and securing, rather than subverting or impeding, the right to vote. Section 39.8(3) establishes a clear standard for disenfranchisement by felony conviction. Executive Order 70 establishes a reasonable process for restoration of rights on a case-by-case basis by the Governor without undue burden or expense. This legislative and executive process protects the integrity of the ballot and insures the orderly conduct of elections. It survives strict scrutiny and does not violate Griffin’s right to substantive due process.

Gamble rejected Griffin’s motion for summary judgment and dismissed the case, assigning court costs to the plaintiff.

I wasn’t surprised Gamble declined to wade into the question of whether a drug-related felony is an “infamous crime.” A lower court would not typically overturn longstanding precedent in the absence of a new Iowa Supreme Court standard for distinguishing lesser felonies from more serious ones.

The last few pages of Gamble’s ruling made for frustrating reading, though. The way the chief judge described the “paperwork requirements” and $15 fee for obtaining a criminal record report, it sounds straightforward and easy for any motivated would-be voter to accomplish. A different picture emerges when you examine the impact of Branstad’s executive order. The process Gamble considers not “burdensome” has prevented more than 99 percent of Iowans who discharged felonies in recent years from regaining their voting rights.

Ryan Foley reported for the Associated Press in June 2012 that fewer than a dozen people had managed to regain their voting rights, out of some 8,000 Iowans who had completed sentences related to felony convictions since Branstad’s executive order took effect. Foley interviewed one man who tried to go through the process:

Henry Straight, who wants to serve on the town council in the tiny western Iowa community of Arthur, is among those whose paperwork wasn’t complete. Straight can’t vote or hold office because as a teenager in Wisconsin in the 1980s, he was convicted of stealing a pop machine and fleeing while on bond.

Straight spent a year on the effort and hired a lawyer for $500 to help. Yet he was notified by the Governor’s Office last month that he hadn’t submitted a full credit report, only a summary, or documentation showing that he had paid off decades-old court costs.

“They make the process just about impossible,” said Straight, 40, a truck driver. “I hired a lawyer to navigate it for me and I still got rejected. Isn’t that amazing?”

Iowa’s process also includes a 31-question application that asks for information such as the address of the judge who handled the conviction. Felons also must supply a criminal history report, which takes weeks and costs $15. Then the review can take up to six months.

Gamble’s opinion declared, “This legislative and executive process protects the integrity of the ballot and insures the orderly conduct of elections.” The chief judge sees Branstad’s executive order as “narrowly tailored to accomplish a compelling governmental interest,” establishing “a reasonable process for restoration of rights.” Is a policy reasonable if it keeps a guy who stole a vending machine from voting or running for office decades later? I don’t see how that outcome protects the integrity of Iowa elections in any way. No reasonable person would consider Straight’s crimes so “infamous” that he should still be barred from political life now.

In December 2012, Branstad generated a lot of favorable headlines for ostensibly making it easier for felons to regain the right to vote. A press release explained that the governor had agreed to “streamline” the process.

“When an individual commits a felony, it is fair they [sic] earn their rights back by paying restitution to their victim, court costs, and fines,” said Branstad.  “Iowa has a good and fair policy on the restoration of rights for convicted felons, and to automatically restore the right to vote without requiring the completion of the responsibilities associated with the criminal conviction would damage the balance between the rights and responsibility of citizens.”

“Too often victims are forgotten and it is important victims of felonies and serious crimes receive their restitution,” said [Lieutenant Governor Kim] Reynolds. “The updated process for restoration of voting rights streamlines the process for applicants while ensuring we are mindful of the victims of the crime.”

The updated application includes:

• Simplified instructions for applicants

• Clarification of the current policy about submitting documentation to show an applicant completed paying their fines, restitution and court costs or has been making consistent payments in good faith

• Provides contact information so applicants can obtain free resources to help them fill out the application

• Removes the requirement for a credit history check for the voting application

Provides a more detailed “checklist of materials” to help applicants turn in a completed application

Incidentally, Reynolds has two drunk driving arrests on her record. But because she wasn’t convicted of a felony, those crimes and serious errors in judgment didn’t stop her from running for county treasurer, Iowa Senate, or lieutenant governor. They haven’t shaken Branstad’s belief that she should succeed him as governor. Yet we are supposed to accept that letting people like Kelli Jo Griffin or Henry Straight vote would compromise the integrity of Iowa elections. Show me the “compelling governmental interest” served here.

In that December 2012 press release, Branstad claimed it’s only “fair” to balance the right to vote with completing “responsibilities associated with the criminal conviction.” Giving too many people their voting rights back would, in his view, “damage the balance between the rights and responsibility of citizens.” Reality: a huge share of convicted felons committed non-violent drug offenses and don’t owe victims restitution. But because many employers won’t even consider hiring someone with a criminal record, unpaid court costs and attorney’s fees can create an insurmountable financial burden, long after people have completed their prison terms or probation.

Poll taxes have been illegal for decades, but somehow Branstad thinks it’s ok to tell a person with a criminal record, you can have your voting rights back if you have enough cash to pay for the privilege. A well-off felon who has completed a sentence for white-collar offenses can jump through these hoops, while a low-income felon will never be able to vote again.

That doesn’t sound like a fair balance between “rights and responsibility” to me. I hope that when the Iowa Supreme Court reviews Griffin’s case, they will consider what happens in the real world when you make someone’s voting rights contingent on having a certain level of disposable income.  

By the way, that “streamlined” application still includes 29 questions, down from 31 on the form used throughout 2011 and 2012. Iowans wanting to vote again must provide information such as the current address of the prosecutor, defense attorney, and judge involved in their felony case, which might not be easy to track down.

When Foley revisited the issue for this piece from January 2014 (cited in Gamble’s decision), the “streamlined” process had been in place for about a year.

Branstad used his power of executive clemency to restore the right to vote and hold public office to 21 offenders who applied in 2013, compared to 17 in 2012 and two in 2011, according to data released by the governor’s officer under the public records law. […]

But the number of applicants still remains tiny compared to nearly 25,000 offenders who finished their sentences for felonies or aggravated misdemeanors between January 2011 and this month, according to Iowa Department of Corrections data. Under a 2005 policy enacted by then-Democratic Gov. Tom Vilsack, those former offenders would have automatically regained their voting rights once they were discharged from prison or parole.

Less than two-tenths of 1 percent of offenders got their voting rights back during the first three years Branstad’s executive order was in effect. Doesn’t sound fair or “narrowly tailored” to me.