I don’t usually write posts like this one.

Check that: I don’t think I’ve ever written a post like this one.

I’m making an exception because the question has been nagging at me since the Iowa Supreme Court announced its 4-3 decision in Griffin v Pate two weeks ago today, and because a number of people who share my interest in felon voting rights have asked for my opinion.

Only Chief Justice Mark Cady knows the answer, and we won’t hear his side of the story until he writes his memoirs or speaks to some interviewer in retirement.

So with no claim to telepathic powers and full awareness that my analysis may therefore be flawed, I will do my best to understand why the author of the 2014 opinion that inspired Kelli Jo Griffin’s lawsuit ultimately decided our state constitution “permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship.”

WHY I EXPECTED A DIFFERENT OPINION FROM CHIEF JUSTICE CADY

Before the Griffin ruling came out, I had a hunch the court would adopt a narrower definition of “infamous crimes” than the current standard, which encompasses all felonies. However, I told myself the decision could go either way. Only while reading Cady’s majority opinion on the morning of June 30 did I realize that subconsciously, I didn’t believe that. I was counting on four justices to reject the policy stripping voting rights of everyone convicted of a felony.

To understand why I felt shell-shocked, you have to go back to Cady’s plurality opinion in Chiodo v. Section 43.24 Panel. The court could have decided that case narrowly: Tony Bisignano was eligible to run for the Iowa Senate, despite having been convicted of an aggravated misdemeanor (OWI, second offense), because a 1994 state law defined “infamous crime” as any felony–not a misdemeanor. Justices Edwards Mansfield and Thomas Waterman would have called it a day after making that point clear.

The chief justice did not stop there. In an opinion joined by Justices Daryl Hecht and Bruce Zager, he wrote,

The felony–misdemeanor distinction does offer a clean bright-line rule. The benefits of such a rule are obvious, and the allure is tempting. Yet, our role is to interpret our constitution by using the language found in the constitution. We perform this role with the presumption that the drafters of our constitution were careful and thoughtful in selecting each word to convey the meaning they intended would be carried forward. If the words of the constitution do not support a bright-line rule, neither can we. Additionally, we recognize that we are dealing with a constitutional provision that disqualifies persons from voting. Ease of application does not justify a rule that disenfranchises otherwise eligible voters.2

A review of article II of our constitution reveals the framers clearly understood that an “infamous crime” and a “felony” had different meanings. Most immediately, article II disqualifies an elector once convicted of an infamous crime. Iowa Const. art. II, § 5. Yet, in the same article, electors “in all cases except treason, felony, or breach of the peace” are privileged from being arrested “on the days of election, during their attendance at such election, [and] going to and returning therefrom.” Id. art. II, § 2 (emphasis added). If the drafters intended the two concepts to be coextensive, different words would not have been used. […] Our framers knew the meaning of felony and knew how to use the term. […] if our founders intended the infamous crimes clause to mean all felony crimes, we must presume they would have used the word “felony” instead of the phrase “infamous crime.” Cf. Snyder, 958 N.E.2d at 771 […] Accordingly, the legislature’s decision to define an “infamous crime” as a “felony” cannot stand alone to define the constitutional meaning of “infamous crime” because the two terms unquestionably have different meanings.

Giving me even more hope, Cady wrote near the end of his Chiodo opinion,

Considering the crime at the center of this case [OWI second offense], we need not conclusively articulate a precise definition of “infamous crime” at this time. We 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. […]

It will be prudent for us to develop a more precise test that distinguishes between felony crimes and infamous crimes within the regulatory purposes of article II, section 5 [of Iowa’s constitution] when the facts of the case provide us with the ability and perspective to better understand the needed contours of the test.

Cady seemed inclined toward the view that not all felony offenses rise to the level of infamous crimes. Mansfield objected in a special concurrence that the plurality was laying out a “welcome mat” for future litigation from felons claiming that since their convictions were not for infamous crimes, they should be entitled to vote.

Why shouldn’t they be? As Democratic State Representative Mary Wolfe noted last week, Iowa’s list of Class D felonies covers a number of actions that are hardly “abominable or shocking,” such as “possessing 1.5 ounces of marijuana without a tax stamp,” “trespassing on property owned by a public utility,” and “stealing a bicycle that costs more than $1,000 to replace.” Who considers all those crimes and many other non-violent offenses so infamous that a person should never be allowed to vote again?

The American Civil Liberties Union of Iowa accepted the Chiodo plurality’s invitation to file a lawsuit seeking not only to restore Griffin’s voting rights, but also “to declare that the Iowa Constitution prohibits the disenfranchisement of people convicted of lower-level felonies (such as nonviolent drug offenses).” After losing at the District Court level, the ACLU asked the Supreme Court to define infamous crimes as those “that are an affront to democratic governance.” Under that standard, the term would cover “only those offenses indicating that the offender is likely to subvert the voting process, such as elections fraud, bribery, and perjury.” Griffin had been sentenced to probation following her conviction for delivering a small amount of cocaine, a Class C felony.

Though Zager had joined the Chiodo plurality, I had a feeling he had changed his mind and would uphold Iowa’s felon voting ban in Griffin. For one thing, the justices had considered Chiodo on a remarkably compressed schedule, because of the need to resolve that case in time to print ballots for Iowa’s 2014 primary election. Zager didn’t say a word during the Griffin oral arguments in March, and as Ryan Koopmans has shown, he has aligned with Waterman and Mansfield more often than with Hecht or with Justices Brent Appel and David Wiggins. Comments by Waterman and Mansfield during the Griffin oral arguments left no doubt that they still believed, as they had held in Chiodo, that “infamous crime” should be construed consistent with the 1994 law.

Meanwhile, Appel (who had recused himself from the Chiodo case) commented during the oral arguments that the framers of Iowa’s constitution “chose not to expressly authorize the general assembly to define the scope of infamous crime.” At the same hearing, Hecht seemed receptive to the idea that an infamous crime should refer to something that “would undermine the process of democratic elections.”

So I was ready to write off Zager, Waterman, and Mansfield. Wiggins looked like a wild card, but open to the ACLU’s perspective, as Hecht and Appel appeared to be.

That left everything in Cady’s hands. He had written in Chiodo that an infamous crime must be “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.”

Cady is also sensitive to the disparate impact of laws and rules. Last month, he was part of a 4-3 majority overturning a state rule that had been in place since the 1970s. That case involved unemployment benefits for people who missed work because of incarceration. In a short special concurrence, Cady wrote,

The agency absenteeism rule in this case has been in existence for over forty years. […] Yet as this case has revealed, when applied to situations of involuntary incarceration for a bailable offense, the rule can disproportionately affect those people in society without the financial resources to post bail. It means people with the financial resources to post bail are unlikely to incur excessive absences due to a bailable-offense incarceration, while those without the financial ability to post bail suffer the consequences of the absenteeism rule.

Justice in our state will be advanced when all implicit bias found in our laws and rules can be identified and eliminated. This case is one example and is a step in the right direction.

I felt Cady would be sympathetic to arguments raised in amicus curiae briefs by the NAACP Legal Defense Fund and the League of Women Voters, which thoroughly exposed the disproportionate effects of Iowa’s felon voting ban on African-Americans. His last two annual addresses to state lawmakers have highlighted efforts to reduce racial disparities in Iowa’s criminal justice system.

SURPRISING ASPECTS OF CADY’S OPINION IN GRIFFIN

Bleeding Heartland has already published key excerpts from Cady’s opinion for the majority (himself, Mansfield, Waterman, and Zager) in Griffin. Today, I want to underscore five points:

The majority did not attempt to show any benefit to restricting felon voting.

Because voting is a fundamental constitutional right, courts usually subject laws or policies that restrict voting to “strict scrutiny,” meaning they are permissible only if a compelling government interest is served. Nowhere in the 40-plus pages of the Griffin majority opinion do the justices argue that there is any good reason to deprive all Iowans convicted of felonies from voting.

I didn’t know a divided U.S. Supreme Court had held in Richardson v. Ramirez (1974) that the 14th Amendment to the U.S. Constitution allows states to deny the right to vote based on criminal convictions. Under that precedent, felon disenfranchisement laws are not subject to strict scrutiny and do not need to serve a compelling state interest.

In his Chiodo concurrence (joined by Waterman), Mansfield was up front about not agreeing with Iowa’s policy.

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.

This map shows how other states address voting rights for people convicted of felonies. Iowa is far outside the mainstream. But unfortunately for Griffin, the majority did not apply heightened scrutiny to the 1994 law defining all felonies as infamous crimes.

The majority opinion deferred to legislative intent and popular opinion.

Cady is best-known for having written the unanimous opinion in Varnum v Brien, the 2009 marriage equality case. Among its most-quoted lines: “A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.”

For that reason, I didn’t expect the chief justice to rely so much on “community standards” and “prevailing standards” to help the court define infamous crime. But there he was, right in the second paragraph:

The term “infamous crime” was generally recognized to include felony crimes at the time our constitution was adopted. This meaning has not sufficiently changed or evolved to give rise to a different meaning today. In addition, unlike some past cases when we have interpreted provisions of our constitution, the facts and evidence of this case are insufficient to justify judicial recognition of a different meaning. Constrained, as we must be, by our role in government, we conclude our constitution permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship. This conclusion is not to say the infamous-crime provision of our constitution would not accommodate a different meaning in the future. A different meaning, however, is not for us to determine in this case. A new definition will be up to the future evolution of our understanding of voter disqualification as a society, revealed through the voices of our democracy.

A few pages later:

Like the cruel and unusual punishment clause, the concept of infamy is not locked into a past meaning, but embodies those judgments that reflect its meaning today. Our founders utilized infamy as a concept to govern the disqualification of voters and knew it would ultimately be defined by the prevailing standards of each generation. Community standards exist to shape these constitutional principles until they evolve into a new standard or it is determined they are no longer supported by our evolving knowledge and understanding.

Later, Cady tried (not convincingly in my view) to square his current position with his Chiodo opinion:

Notwithstanding, no objective evidence exists that the founders of our Iowa Constitution adopted or intended to adopt a concept of infamy restricted to those crimes that undermine the integrity of the election process or any comparable standard, or that our state evolved to embrace such a standard at any time in our history. In Chiodo, we indicated infamous crime as a disqualification from voting was a means to avoid undermining the integrity of elections. 846 N.W.2d at 855–56. This observation did not establish a standard, but identified a broad rationale for the constitutional provision. See id. A standard must still exist, and a standard based on felonies is not necessarily inconsistent with the rationale of upholding the integrity of elections. The bottom line is that throughout history the concept of infamous crime may have included crimes in addition to felonies, but it always included felonies or crimes that would be classified as felonies today.

It is also important to observe that in the generation that has passed since the 1994 statute, there has been no objective public sign or movement to redefine infamy as the disqualifying standard—until this case.

In the last few paragraphs of his opinion, Cady was even more explicit about putting the responsibility for changing felon voting policy on the people of Iowa, through their elected officials:

Our great advantage as a democracy is found in the clamor of debate democracy encourages. See 1 Alexis de Tocqueville, Democracy in America 265–67 (Henry Reeve trans., D. Appleton Co. 1904) (1835). This advantage, however, is not always shared equally among all people in all issues. The clamor of debate most often occurs for those issues that affect those people with the most powerful voices. Yet all issues need the clamor of debate to advance. Moreover, debate is not just needed for the politics of democracy. It is also needed by courts when called to interpret constitutional doctrine in our evolving world to hear the judgment of the legislature, our citizens, social science, and the scientific disciplines.

In this case, the legislative judgment was clearly expressed, and there are no facts or scientific evidence to undermine that judgment. In truth, the clamor of debate has largely passed over the issue of disqualifying voters in Iowa for a conviction of an infamous crime, and courts are unable to move issues forward on their own perceptions of infamy in today’s society. In this case, there is insufficient evidence to overcome the 1994 legislative judgment, and we must accept it today as the standard for infamous crime. It will be up to our future democracy to give the necessary voice to the issue and engage in the debate that advances democracy.

Hecht’s dissent criticized the use of “majoritarian preferences” to determine “the propriety of disqualifying all felons as electors.”

Given the fundamental nature of the right to vote, we should not deny it to Griffin just because most folks favor disenfranchisement of all felons; neither should we deny her the right because “that is the way it’s always been in Iowa” or because “that’s the way it’s done elsewhere.” Our scrutiny must instead confront the hard question of whether there is a compelling governmental interest in disenfranchising her for drug-related offenses. In my view, there is not.

The notion that allowing Griffin to vote will render the ballot box impure, disrupt the electoral process, or damage institutions of democratic governance is fanciful at best. I posit there is no legitimate basis for concluding Griffin’s vote will have any such adverse effects; and precluding her vote will, in my view, advance no compelling government interest.

Wiggins contrasted the logic of the Griffin majority with the court’s holding in Varnum and found it wanting:

the majority’s incomplete analysis gives short shrift to a matter concerning individual rights. Its approach represents a stark retreat from the robust analysis of individual rights under the Iowa Constitution this court traditionally applies. See generally Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (applying our traditional approach to matters involving individual rights under the Iowa Constitution).

The majority emphasized the seriousness of Griffin’s crime.

Griffin struck me as an ideal plaintiff for this case, having committed a non-violent offense, for which she was never incarcerated, while battling a drug addiction she has since conquered. To my mind, few would consider her crime heinous compared to many other felonies that might justify revoking the right to vote. During the oral arguments, none of the justices challenged ACLU attorney Rita Bettis along the lines of: wasn’t your client’s crime really awful and notorious?

Cady’s opinion dismissed the idea that delivering 100 grams or less of cocaine is not such a big deal.

We also reject Griffin’s claim that her crime of conviction is not infamous because it was not associated with violence. Infamy has never required a violent act. […]

The unlicensed, unprescribed sale or other distribution of cocaine has been illegal in the State of Iowa since 1902. […] Moreover, the delivery of cocaine is criminal in all fifty states as well as under federal law. […]

Any easing of the societal judgment toward the criminal nature of some drugs and some types of offenses remains nebulous, and in no cases we could find has the easing extended to cocaine delivery. It is not misplaced within our law as a felony offense.

I guess the ACLU should have looked for an plaintiff barred from voting for trespassing on property owned by a public utility.

The majority wasn’t troubled by the extra burden Iowa’s policy places on certain racial or socio-economic groups.

The ACLU’s brief on Griffin’s behalf touched on the history of felon disenfranchisement laws as one means to reduce the political power of African-Americans. The NAACP Legal Defense Fund and the League of Women Voters further developed that point in their amicus filings. During the oral arguments, Mansfield was dismissive of the idea that justices should be making “public policy determinations.” In response, attorney Coty Montag noted the court’s language in Varnum, saying “when a law impacts a fundamental right, that it is appropriate for a court to consider, among other things, the societal impacts.”

The dissents by Hecht and Appel referred to those amicus filings in noting how a broad definition of infamous crimes penalizes not just the thousands of African-American Iowans who cannot vote, but others in their communities too. I would have thought this argument would resonate with Cady, but he wrote for the majority:

Finally, we acknowledge that voter disqualification based on criminal convictions has a disproportionate impact on voting rights of African Americans and perhaps other groups in society. Yet this outcome is tied to our criminal justice system as a whole and is not isolated to the use of the infamous-crime standard. Racial disparity must be eliminated in society, but its unwanted presence does not necessarily undermine the concept or current definition of infamous crime as a standard for voter disqualification. Moreover, no evidence suggests this state adopted or maintained infamy to discriminate against minority groups.

How different in tone from Cady’s special concurrence in the recent unemployment benefits case. He was not worried about the intent behind that state agency rule when observing that it

can disproportionately affect those people in society without the financial resources to post bail. It means people with the financial resources to post bail are unlikely to incur excessive absences due to a bailable-offense incarceration, while those without the financial ability to post bail suffer the consequences of the absenteeism rule.

Justice in our state will be advanced when all implicit bias found in our laws and rules can be identified and eliminated.

Speaking of rules that hurt Iowans without financial resources, Governor Branstad requires applicants seeking to regain their voting rights to show they have paid or are on track to pay all expenses associated with a felony conviction (court costs, attorney’s fees, restitution). It is unfair to make a fundamental constitutional right conditional on whether a convicted felon has independent wealth or disposable income. Yet in deciding the Griffin case, the court did not consider the voting rights restoration process Branstad established in a January 2011 executive order, because

Griffin’s remaining challenges to the statutes and regulations governing voting and the restoration process were dependent on a finding that her conviction did not qualify as an infamous crime. Since we conclude that infamous crime under the constitution means felony crime, we need not address these issues.

The majority didn’t say Iowa could not adopt a more limited definition of “infamous crimes.”

Despite literally fighting back tears reading the majority opinion on June 30, I derived small consolation from one fact: the justices did not accept the disgraceful premise of the amicus brief for the Iowa State Association of Counties. The advocacy group representing county governments had argued all felons should be banned from voting, because to do otherwise would make life too hard for election administrators–even though the chief elections officer in Iowa’s most populous county strenuously disagreed.

Polk County District Judge Arthur Gamble had noted in his ruling against Griffin, “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.” Iowa county governments ran that ball down the field, giving the Supreme Court various whiny excuses for why it would be too difficult to run elections if some felony offenses were determined not to be infamous.

Zero out of seven justices found that argument persuasive.

Here, at least, Cady did not depart from the principle he enunciated for the Chiodo plurality: “Ease of application does not justify a rule that disenfranchises otherwise eligible voters.” The Griffin majority repeatedly left the door open to an evolving standard for “infamous crimes” that may one day not encompass all felonies.

In other words, the Supreme Court will not consider it unconstitutional if Iowans embrace a new approach to felon voting, through their elected officials amending the 1994 law. State Representative Wolfe has taken up the call to convince legislative colleagues to engage in this debate next year.

Getting back to the central question of this post, why did the chief justice side with Mansfield, Waterman, and Zager, rather than with the justices who were ready to strike down Iowa law as an overly broad restriction of the right to vote?

WHAT I MISSED ABOUT CADY’S JUDICIAL PHILOSOPHY

Several readers have posited in private conversations that Cady may have feared establishing a new standard for infamous crimes would provoke a backlash in this November’s judicial retention elections. Outrage over the Varnum decision fueled a successful campaign against retaining Chief Justice Marsha Ternus, Justice Michael Streit, and Justice David Baker in 2010. Those elections traumatized many who worked for the Supreme Court.

Most politically-minded Iowans (including me) stopped worrying years ago whether Cady, Appel, and Hecht would be retained in 2016. Wiggins survived a campaign to oust him in 2012, and opinion polls show growing acceptance of marriage equality. The U.S. Supreme Court’s 2015 ruling in Obergefell put an exclamation point on the reality that Iowa will never again prohibit adults from marrying the partner of their choice.

Secretary of State Paul Pate’s contemptible demagoguery following the Griffin oral arguments made me newly aware that this case could lead to major political fallout. In numerous public appearances, co-defendant Pate blasted “liberals” seeking to let child molesters, rapists, and murders vote. His rhetoric was practically a camera-ready script for a campaign against “unelected judges” who had imposed their will against “the people.” Whether Pate’s goal was to intimidate the justices or merely to inflate his own standing in Republican circles, I have no idea.

Pate’s inappropriate behavior notwithstanding, I do not believe Cady upheld Iowa’s felon voting ban out of concern for his own job security.

I am convinced the chief justice would put his name to an opinion so unpopular it might damage his own reputation.

Whether he would put his name to an opinion that might hurt the court’s reputation is another matter.

Talking with attorneys who follow the Supreme Court’s work more closely than I do, I noticed that several weren’t the least bit surprised by Cady’s decision. They noted his “cautious” or “conservative” leanings–not in terms of political views, but in how far he is willing to take the court out on a limb.

I wasn’t tuned in to this side of Cady’s judicial philosophy, because I read only a small percentage of the court’s opinions. Several cases that were on my radar because of their public policy implications happened to end in 4-3 opinions, with Cady in the majority:

• two 2013 juvenile sentencing cases;

• a 2014 case involving the Iowa Utilities Board’s finding on solar power purchasing agreements;

• a 2014 case about the Environmental Protection Commission’s adoption of an important water quality rule;

• this year’s opinion striking down a scheme by the Warren County supervisors to evade Iowa’s open meetings law;

• this year’s opinion overturning an Employment Appeal Board absenteeism rule that dated to the 1970s.

In all of those cases, the trio of Mansfield, Waterman, and Zager dissented from the majority opinion joined by Cady, Wiggins, Hecht, and Appel. Naturally, I assumed this case would break along the same lines.

The big point I missed was that Griffin wasn’t like any of those cases. Griffin resembled Varnum: a potentially explosive decision, which would attract national media attention. Striking down the felon voting ban would instantly make this issue salient for far more Iowans than the thousands directly affected by the ruling.

In their 2015 book Equal Before the Law: How Iowa Led Americans to Marriage Equality (pp. 134-5), Tom Witosky and Marc Hansen wrote about the day Cady laid out his view of the Varnum case to his six colleagues. He had been assigned the task of writing the opinion weeks earlier by random drawing.

“We should affirm,” he said softly, citing the Iowa Constitution’s equal protection guarantee, which, in his mind, clearly prohibited limiting civil marriage to a man and a woman. […]

Next, each justice was given the chance to respond. First up was Hecht, who agreed with Cady’s assessment. Then came the rest of the dominoes–Streit, Baker, Wiggins, Ternus, Appel. All concurred on the equal protection analysis. Just as Cady had hoped, the plaintiffs’ argument would be unanimously upheld as long as he could write an opinion that held everyone together.

This decision, he thought, was too controversial, too volatile for anything less. When it came to Varnum, he strongly believed the court should speak in one voice. In writing the decision, he was convinced there was no room for even a concurring opinion–an opinion in agreement with the court’s conclusion but not its reasoning.

A unanimous ruling was never in the cards for Griffin.

Either way, Cady would be part of a 4-3 decision carrying less authority.

A 4-3 decision affirming the status quo would be controversial and disappointing to many people. But what has transpired in Iowa since June 30 is nothing like the uproar that would have ensued from a 4-3 decision overturning a 20-year-old law and a century of judicial precedent to allow thousands of convicted criminals to vote.

My gut says Cady didn’t want to go there, regardless of his initial view of felon voting rights (revealed in the Chiodo plurality).

On a related note, several acquaintances concur with my conjecture that if the 2010 retention elections had played out differently, and Ternus, Streit, and Baker were still on the court instead of Mansfield, Waterman, and Zager, Cady would likely have joined a unanimous ruling for Griffin instead of a four-member majority for Pate.

Please share any relevant comments or rebuttals in this thread, or contact me privately with thoughts you’d rather not post in a public forum.

P.S.- Later today (July 14), five panelists will discuss how the Iowa Supreme Court’s dynamics have changed during the five years since Cady became chief justice: appellate lawyer and legal blogger Ryan Koopmans, Des Moines Register reporter Grant Rodgers, Iowa Public Radio reporter Sarah Boden, University of Iowa law professor Todd Pettys, and longtime Des Moines Register editorial writer Rox Laird. The Register is hosting the event from 4:30 pm to 6:00 pm on the third Floor of the EMC Building at 700 Walnut Street. There is no charge to attend, but the Register is asking people to RSVP at DesMoinesRegister.com/CadyCourt. I have another commitment tonight but hope to publish a guest post soon by someone who will be there.

UPDATE: Bleeding Heartland user IowaBadger wrote up the highlights from the “Cady Court at Five” event.