On March 30 the Iowa Supreme Court heard oral arguments in Griffin v. Pate, Iowa’s most important voting rights case in many years. The court had scheduled an hour for the hearing, twice as long as for most cases. Several of the attorneys went over the allotted time, as justices interrupted frequently with questions. You can watch the entire proceeding here, and it’s well worth an hour and eighteen minutes of your time. For summaries of the key points raised, read reports by Ryan Foley for the Associated Press or Grant Rodgers for the Des Moines Register. Radio Iowa’s Dar Danielson, Iowa Public Radio’s Sarah Boden, and Des Moines Register columnist Kathie Obradovich provided shorter takes.

I’m on record predicting at least four Iowa Supreme Court justices will determine that not all felonies rise to the level of “infamous crimes.” That outcome would allow Kelli Jo Griffin and thousands of other Iowans to vote after completing their prison sentences or terms of probation or parole.

After what I heard Wednesday and watching the hearing again on YouTube, my gut feeling hasn’t changed, though I wouldn’t be shocked to see the majority go the other way. Almost certainly the decision will not be unanimous. Any comments about the Griffin case or felon disenfranchisement generally are welcome in this thread. I enclose below some of my takeaways from the oral arguments.

1. It’s not yet clear which justice will determine the outcome.

Griffin’s lawsuit was inspired by the plurality opinion in an April 2014 case over whether Tony Bisignano was eligible to run for office. Chief Justice Mark Cady, joined by Justices Bruce Zager and Daryl Hecht, held that Bisignano’s aggravated misdemeanor did not disqualify him as an “elector.” The plurality opinion went on to suggest that not all felony offenses should be considered “infamous crimes,” which under Iowa’s constitution justify permanently revoking a citizen’s voting rights. A 1994 Iowa law declaring all felonies to be “infamous crimes” was not binding on the high court, according to the three justices, since it is not the job of state lawmakers to define terms in the constitution.

Justice Brent Appel recused himself from the ballot access case two years ago, so he could become the decisive fourth vote for a ruling that narrowly construes the definition of “infamous crimes”–assuming the rest of the Chiodo plurality holds together. But not so fast, Ryan Koopmans cautioned at the On Brief blog:

When the Court took up this issue two years ago, the justices were moving at lightening speed. They heard oral argument just five days after getting the appeal and only two days after receiving the appellee’s brief. And they issued their decision (with the three separate opinions described above) just six days after oral argument.

To put that into perspective, a constitutional case of this magnitude usually takes well over a year from appeal to final decision. And the justices usually give themselves at least three to four months after oral argument to work on their opinions.

So don’t be surprised if Justice Appel isn’t the only one who’s still wrestling with this issue. Having had more than a couple days to think about it, some of the justices could easily change their mind.

2. Court-watchers got no clues about Justice Zager’s current leanings.

Only one of the seven justices asked no questions during the Griffin oral arguments. As Koopmans has shown, Zager emerged as a “swing vote” soon after joining the Iowa Supreme Court in 2011. He has been in the majority on more non-unanimous rulings than any of his fellow justices.

With much more time to consider this case than the court had to rule in Chiodo (where a quick decision was imperative to allow primary election ballots to be printed in time for early voting), Zager may conclude it’s not prudent to adopt a definition for “infamous crimes” different from the standard laid out in Iowa’s 1994 law.

3. Chief Justice Cady and Justices Hecht and Appel seemed open to narrowing the definition of infamous crimes.

Cady remarked during the arguments that those who wrote the Iowa constitution “wanted to make people who were convicted of an infamous crime ineligible to vote. They didn’t say felony crimes.”

Here’s Appel, beginning around the 42:35 mark:

I have trouble with the notion that the definition of infamous crimes falls anywhere other than with the [Iowa Supreme] court. Hard to decide, but you know, that’s our responsibility [….] Surely in 1857 they had compendiums of all the state constitutions to look at, and they chose not to expressly authorize the general assembly to define the scope of infamous crime.

Questioning Muscatine County Attorney Alan Ostergren, Hecht sounded receptive to the idea that revoking a person’s voting rights should be related to whether that person’s crime threatened the integrity of the election process. Beginning around the 40:30 mark:

Counsel, let’s assume that we don’t follow–just for the sake of discussion–we don’t follow the arbitrary, categorical, all felonies are disenfranchising crimes. And so, my question to you is, give me your best theory as to why allowing a felon who is convicted of the drug offense that Ms. Griffin was convicted of would undermine the process of democratic elections?

Questioning Solicitor General Jeffrey Thompson later, Hecht wanted to know what the crime Griffin committed (a non-violent drug offense) “has to do with purity of the ballot box.”

4. Justices Edward Mansfield and Thomas Waterman seemed inclined to rule against Griffin.

In the Chiodo case, Mansfield wrote a special concurrence, joined by Waterman, which held that the court should accept the bright-line definition from the 1994 law equating felonies with “infamous crimes.” Mansfield acknowledged in that opinion,

I believe that convicted felons who have served their sentence and paid their debt to society ought to be able to vote, without requiring dispensation from the governor. By permanently disenfranchising convicted felons, Iowa puts itself in a small minority of three states. But my personal views do not carry weight when it comes to interpreting the Iowa Constitution.

At various points during the oral arguments, Mansfield and Waterman indicated skepticism toward the idea that the Supreme Court should second-guess state lawmakers.

While Coty Montag was speaking on behalf of the NAACP, which filed an amicus brief supporting Griffin, she highlighted the racially disparate impact of Iowa’s voter disenfranchisement policy. Mansfield interrupted around the 28:10 mark:

Shouldn’t we be addressing the racial disparities directly? And then, on your second point, isn’t that kind of a public policy determination, that the public and their representatives get to make? That is, whether it’s better for rehabilitation and things like that to allow people to be able to vote once they’re released from incarceration? […] You would agree that we as judges are not free to make public policy, are we?

Waterman asked Rita Bettis, the ACLU of Iowa attorney representing Griffin (around the 7:30 mark), “Why didn’t Ms. Griffin take advantage of the executive order and apply for restoration of her voting rights? Is there any showing in the record that that would have been futile?” (He was referring to Governor Terry Branstad’s January 2011 executive order, which laid out a process for regaining voting rights that only a small fraction of felons have navigated successfully.)

Later, questioning Gary Dickey, who was supporting Griffin’s position on behalf of Polk County Auditor Jamie Fitzgerald, Waterman suggested defining “infamous crimes” as only those crimes that threaten the integrity of elections might nonetheless create confusion. Here’s Waterman, around the 23:30 mark:

Counsel, wouldn’t we inevitably be drawn into a crime-by-crime adjudication? I mean, let’s take assault: maybe that doesn’t fit any of these categories. But what if it’s an assault at someone trying to get to the voting booth? What if it’s voter intimidation at a political rally?

5. Wiggins may become the swing vote in this case.

Before Wednesday, I viewed Wiggins as highly unlikely to support Griffin’s lawsuit. He dissented from the Chiodo plurality opinion, saying,

The plurality is rewriting nearly one hundred years of caselaw. I do not think we should do so at this time. […] Eliminating our bright-line rule is not only unnecessary, but also dangerous. […] I see no reason why at this time we should redefine the term “infamous crimes.” Today I fear we are abandoning a seaworthy vessel of precedent to swim into dangerous and uncharted waters.

During the Griffin oral arguments, Wiggins still sounded worried that redefining infamous crimes would lead to extensive litigation, and that it would be challenging to implement a new standard fairly. Less than a minute into Dickey’s presentation, Wiggins interjected, “You’re the guy I’ve been waiting to talk to, I think. Tell me why Auditor Fitzgerald, your client, thinks that he can administer a test, such the one he’s proposing, and do it in a fair and reasonable way, and ensure a fair and true election.”

Questioning Dickey further around the 24:40 mark:

You know, we have trouble deciding which crimes fit in there. How are 99 independently elected auditors going to do that, and be consistent? Because we don’t want people voting in one county who are precluded from voting in another county. So how does it work?

Dickey responded by listing some offenses that would fit the “affront to democratic governance” standard that the ACLU of Iowa and Fitzgerald are advocating: election misconduct, campaign finance, government ethics, obstruction of justice, bribery, corruption, official misconduct. Whether that answer alleviated Wiggins’ concerns, I have no idea.

Wiggins is clearly not satisfied with some aspects of Iowa’s current disenfranchisement policy. Beginning around 37:40, he said it was “bothersome” to him that someone convicted of OWI second offense (an aggravated misdemeanor) is able to vote, while someone convicted of the same crime for the third time would lose the right to vote permanently, because a third OWI is a felony. Around the 39:00 mark, Wiggins wondered why the justices should not go back and look at the criminal code at the time the Iowa constitution was adopted in 1857. OWI wasn’t a crime then, he observed, and neither was delivery of illegal drugs. Around 54:00, he said “it bothers me” to say felony and infamous crime are equated, given that the same article of the constitution uses both terms.

When I re-read the Wiggins dissent from Chiodo, I realized that unlike Mansfield and Waterman, he did not accept the legislature’s prerogative to define “infamous crimes.”

First, I agree with the plurality that the legislature cannot write a constitutional definition of “infamous crime” by its enactment of Iowa Code section 39.3(8) (2013).9 The legislature cannot disqualify a voter by defining “infamous crime” under our constitutional scheme because the constitution defines who is and who is not an eligible elector. […] The plurality should not use the legislature’s pronouncement in section 39.3(8) to control our constitutional duty to interpret the Iowa Constitution.

Though his Chiodo opinion showed that Wiggins is reluctant to throw out a century of precedent, his questions on March 30 hinted that he might be open to a new bright-line test for “infamous crimes,” if he could be persuaded such a test would be workable for election officials.

6. Muscatine County Attorney Ostergren provided the most cringe-worthy moment of the hearing.

Allowing amici to participate in oral arguments is highly unusual. Koopmans pointed out that the Iowa Supreme Court hasn’t done so since 2002.

I didn’t care for the tone of the “friend of the court” brief Ostergren filed on behalf of the Iowa County Attorneys Association. After seeing its author in action, I’m no more impressed.

Ostergren began by asserting that disenfranchising felons does not take away anyone’s fundamental rights. To illustrate that point, he made a bizarre analogy, starting around the 33:20 mark.

[T]he 14th Amendment expressly contemplates that states will and may disenfranchise people convicted of crimes. If a person loses their [sic] right to vote because of the conviction of a crime, they [sic] have not lost any part of their fundamental right to vote.

Let me give you an example. I have a very, very smart 13-year-old, who knows more about politics than her dad. And suppose she wants to vote this fall, and she sues [Iowa Secretary of State] Paul Pate and says, “Register me to vote. I want to participate in the election.” Now, obviously, she should not prevail in that litigation. Has she lost her fundamental constitutional right to vote? No. Because that does not apply to people who are under the age of 18.

That is the same situation that Ms. Griffin is in. Having been convicted of a crime, the state of Iowa is free to, as a question of policy, if it wishes, deprive her of the right to vote. She has lost nothing under the U.S. Constitution that could not have been taken from her.

The logical fallacy is even more irritating than the dangling modifier in that last paragraph.

Justice Appel broke in to point out the obvious (around 34:30):

I’m not sure I follow that completely […] No 18-year-olds–13-year-olds, can vote. They are not eligible. But, but Ms. Griffin is eligible, but she’s been disqualified […] by the operation of the [Iowa] constitutional provision as implemented by statute. Isn’t there a difference between disqualifying an otherwise eligible elector and someone who doesn’t get, you know, kind of within the gate in the first place?

7. Solicitor General Thompson argued the state’s case effectively.

I was surprised to see Ostergren stand up first when the state’s time began, but that turned out to be a wise decision, because Thompson presented a much more persuasive case. In public speaking, finishing strong is important.

Thompson acknowledged right away that the Iowa Supreme Court is charged with interpreting the constitution. However, he argued, the justices could affirm the 1994 law while playing that role.

He also claimed that the changes between Iowa’s 1844 draft constitution and the document adopted in 1846 were consistent with the idea that “this path of felony line-drawing is the right path.” Beginning around the 48:30 mark:

You have said over and over and over again that crimes are creatures of statute. By definition, a crime is a law passed by the general assembly. […] By using that word [crime], the legislature’s in play. […] When the constitution says “conviction of an infamous crime,” by definition, that’s contemplating that it involves the law in effect at the time of the conviction. There’s no other way for that to work. If the conviction is the triggering event, then it’s the conviction and the law that you were convicted of in the time and space of the conviction. […]

It’s also consistent with that idea that the crimes of conviction, that drive forward this analysis of infamous crime, or implement the idea of infamous crime, can evolve and will change. So there’s line-drawing, and the lines change. […]

[W]hat is infamous will change, and there’s exhaustive discussion about pillories, and whipping, and hard labor that illustrates that. And so our criminal justice system definitely changes and evolves.

Thompson cited an 1848 case that embraced the “common law” definition of infamous crime as “treason, felony, and crimen falsi.” That case preceded Iowa’s adoption of our current state constitution in 1857, which reasserted the disenfranchisement of those who have committed infamous crimes.

Responding to an earlier question from Wiggins about why the same crime (operating while intoxicated) is an aggravated misdemeanor on the second offense but a felony on the third offense, Thompson said the legislature has decided that the “fact that this is the third time is relevant.” It’s reasonable to conclude that someone who committed that crime a third time is morally corrupt.

When Wiggins asked why the constitution would use the words felony and infamous crime in the same article if they mean the same thing, Thompson replied, “We’ve never said they were equated. We agree that they’re not synonymous.” He went on to argue that common law of the 1850s held that infamous crimes mean “treason, felony, plus stuff. […] All felonies are infamous crimes, but all infamous crimes aren’t felonies. And I think that states the common law, that’s the way it’s always been.”

In the 2014 Chiodo case, the state argued against extending the disenfranchisement policy to some aggravated misdemeanors, Thompson noted (56:15).

We argued, no, there’s no reason to go beyond the felony line, because all felonies have always been included, and misdemeanors have not. And, more importantly, […] the cases that were the center of that [Chiodo] discussion can fairly be read in their context as saying all felonies are infamous crimes, in light of the binary nature. So we have never said they are exactly the same thing. We’ve just said “infamous crimes” includes all felonies, and it always has, and that you can interpret you case law, the constitution, and the statutory scheme in a way that is cohesive by holding that line. It also has the side benefit of being predictable, and manageable and all those things.

As an Iowa resident and taxpayer, I’m glad we have a highly capable solicitor general. But as a person who believes Iowa’s unusually harsh disenfranchisement policy is unjustified and unfair, I couldn’t help wishing Thompson had had an off day at work on March 30.