Members of the Iowa Democratic Party’s Third District Central Committee voted yesterday to use an obscure provision of state law to nominate Theresa Greenfield for the primary ballot. After about 30 minutes of debate, the committee narrowly supported a motion to add another candidate to the Congressional primary ballot (36 to 31, with two abstaining). A second motion, for Greenfield to be that additional candidate, passed 47 to 10, with six abstentions.

Before Greenfield’s name is added to the candidate list, an election panel consisting of Attorney General Tom Miller, Secretary of State Paul Pate, and State Auditor Mary Mosiman will likely consider an objection. Depending on the outcome, the panel’s decision may be challenged in court.

Central committee members were in an unenviable position; no matter how they voted, some activists would be upset. Unfortunately, the chosen path suggests that Iowa Democrats will abandon normal procedures if necessary to help a sympathetic candidate.

QUESTIONABLE USE OF THE LAW

As Bleeding Heartland discussed here, Iowa Code section 43.23 allows a political party’s convention or central committee to “designate one additional primary election candidate for the nomination that person was seeking” if “a person who has filed nomination papers with the state commissioner as a candidate in a primary election dies or withdraws […].”

The statute appears to be designed to allow parties to substitute a different candidate for someone who is unable to continue a campaign. However, Greenfield maintains it should apply to her situation, because she withdrew her nomination papers after learning her campaign manager had forged some signatures. (The Secretary of State’s office retains possession of those initial nominating petitions.) The Greenfield campaign released this memo by attorney Blake Hanson on March 25.

Granted, Iowa Code does not explicitly say the “additional primary election candidate” a party designates must be an individual other than the person who withdrew. But Greenfield’s legal analysis did not address this language in Iowa Code 43.16(3).

The name of a candidate who has withdrawn or died on or before the final day to withdraw as a candidate for that office shall be omitted from the certificate furnished by the state commissioner under section 43.22 and omitted from the primary election ballot.

Arguably, when Greenfield submitted new nominating papers for the IA-03 race on March 16, she nullified or rescinded her withdrawal as a candidate earlier in the day.

I am seeking comment from the Secretary of State’s office on its interpretation of this statute and whether it may reject a new affidavit from Greenfield, on the grounds that she was no longer a “candidate who has withdrawn” at the time of the central committee’s March 26 vote. Last week, Pate said he was “reserving judgment on the applicability of Iowa Code section 43.23” to Greenfield’s situation, adding,

If the Third District Democratic Party makes the decision to hold a convention and nominates an additional candidate for the June 5 primary election, we would receive the convention certificate and affidavit of candidacy from the chosen candidate. The role of the Secretary of State’s office in this process is to take receipt of a convention certificate, which does not mean that the selected candidate’s placement on the ballot is guaranteed or above legal challenge.

Yesterday’s central committee meeting was supposed to be contingent on guidance from the Attorney General’s office on whether the code provision is applicable. But Miller’s staff declined to release an opinion last week, because “there is a live controversy pending,” and Miller serves on the panel that could consider a challenge to nominating Greenfield.

A POLITICALLY EXPEDIENT DECISION

Understandably, the district’s executive committee voted to allow all 88 central committee members to participate in this decision, the most important matter to come before the body in many years. Central committee chair Bill Brauch had already argued in an e-mail to colleagues that Iowa Code 43.23 does not apply to Greenfield’s circumstances. In his view, “she clearly has not withdrawn as a candidate,” and the statute “does not contemplate” the person who pulled out of the race “being the same person who will be placed on the ballot by the Central Committee via this process.”

Joe Diver, campaign manager for Democratic primary rival Cindy Axne, made more legal arguments in a March 23 memo to IA-03 central committee members. I enclose the full text at the end of this post. Excerpts:

A candidate who withdraws must be omitted from the primary ballot
According to Iowa 43.16, a candidate who has withdrawn cannot replace themselves on the ballot. […]

No qualified candidate has withdrawn or died
The nominating petitions Theresa Greenfield admitted to being fraudulent and were filed and later withdrawn by the Greenfield campaign not only contained forgeries, but also just barely met the overall signature threshold as well as the signature thresholds in several counties. It is likely that when fraudulent signatures are removed, these nominating petitions did not meet the minimum standards. This means that no qualified candidate has withdrawn from the race.

Adding a candidate to the ballot is likely to result in litigation
Due to the overwhelming evidence that the statute being invoked does not apply in this case and that therefore the Third District Central Committee does not have the power to add a candidate to the ballot, it is exceedingly likely that a Republican or Democratic candidate will seek and receive legal relief from this action.

That memo angered many Democrats. Central committee member John McCormally, an attorney and a supporter of IA-03 candidate Pete D’Alessandro, told Bleeding Heartland on March 23,

Even if we did designate another candidate, there is no guarantee she would be on the ballot. A challenge to the designation would go before the 43.24 election board […]. They could say no, and there are decent legal reasons why they might say no. However, if they did say no, the Third District is certainly not liable for damages, as the Axne people suggest. Axne’s “memo” attached to the email states, “Third District Central Committee does not have the power to add a candidate to the ballot, it is exceedingly likely that a Republican or Democratic candidate will seek and receive legal relief from this action.” To me, this is a threat that the Axne campaign will attempt to sue the 3rd CD if it designates Theresa Greenfield. Such a lawsuit would be instantly dismissed because the 3rd is not a proper party, but the threat is there. It is that part of their email which I find most objectionable, and believe that it constitutes over the line bullying tactics. You don’t threaten to sue fellow Democrats without legal basis.

Furthermore, the Axne memo also cites 43.16 for the proposition that a candidate who withdraws must be omitted from the primary ballot-permanently. Under this line of thinking, Greenfield’s attempt to collect a second set of signatures was impermissible.– if she had collected enough, would the Axne people be arguing she should be excluded because of 43.16? That’s totally illogical.

I read the Axne memo not as a threat to sue the Third District Democrats, but as an observation that litigation is likely to follow and has a good chance of overturning efforts to add Greenfield to the ballot. As for 43.16, I don’t see anyone arguing that a candidate who has withdrawn cannot change that status by filing new nominating petitions before the deadline, as Greenfield did.

What seems “totally illogical” to me is concluding Greenfield is a “withdrawn” candidate, even though she has campaigned actively on a daily basis through e-mail, social media posts, phone calls, fundraising, and appearances at county conventions.

In any event, many central committee members found the legal arguments against using this code provision persuasive, as shown by the 31 votes against designating an additional candidate for the primary ballot. But a slightly larger group felt a party committee should not impose a legal judgment. Pat Rynard reported for Iowa Starting Line,

“We’re just voting to let Theresa move forward to the Secretary of State, who will allow or deny Theresa to be on the June primary ballot,” said committee member Julie Stewart. “Either decision will be challenged and to go to a three-person forum. Let the final decision be on the shoulders of the Secretary of State, State Auditor and the Attorney General.”

In the words of Michael McKinley, “It seems to me that we should go ahead and put Theresa on the ballot and then wait for the final verdict from the secretary of state or the attorney general.”

The problem with that politically expedient approach is it puts Iowa Democrats on record saying, in effect, we will use whatever method we can find to give candidates who caught a bad break another shot. Let other institutions sort out the legality.

It is hard to believe a candidate without heavy-hitter endorsers would get the same consideration. We will find out next time a Democrat falls short in collecting enough valid signatures to qualify for some public office.

Iowa Senate Minority Leader Janet Petersen posted on Facebook March 23,

Last week, we saw a story unfold for a Democratic Congressional Candidate that doesn’t seem fair. […]

Theresa immediately did the right thing by withdrawing her nomination papers and telling the truth. Democrats pulled together, scrambling to help her get the required number of signatures to file before the filing deadline.

Unfortunately, they fell short. Theresa didn’t get enough signatures for her name to be placed on the ballot.

I believe we need to figure out a way to give Theresa Greenfield another avenue to put her name on the ballot. No candidate should be punished for the fraudulent act of others.

The situation facing Theresa Greenfield exposes a weakness in our nomination process that must be addressed.

I would hate to see other candidates lose their ability to run by having people maliciously tamper with a candidate’s nomination forms. It could impact candidates up and down the ballot of any party affiliation.

State election officials and party leaders should figure out a way to ensure our state doesn’t prevent a good candidate from being on the ballot because of a bad actor.[…]

It’s troubling for a legislative leader to say Democrats “need to figure out a way to give Theresa Greenfield another avenue to put her name on the ballot.” On principle, our party should stand for the rule of law–not looking for loopholes to help someone we like continue a campaign.

What happened to Greenfield was unfortunate. Though I am undecided on the IA-03 race, I was hoping Greenfield would manage to collect enough new valid signatures on March 16. With help from AFSCME, the large public employee labor union that has endorsed her, that should not have been an insurmountable task.

Now party insiders appear to have pulled strings for a candidate who failed to meet the requirements, using a law intended for a different situation. That’s a bad look, regardless of whether three or four names appear on the Democratic primary ballot in IA-03.

Axne’s campaign has not confirmed whether it will challenge the central committee’s action. Diver said in a statement, “The vote today opens up the nominee and the entire Democratic ticket to charges of election fraud and backroom deals that are going to haunt us in the fall. We are reviewing all of our options.”

I’ll update this post following the election panel’s March 27 meeting.

P.S.–I speculated last week that Axne would be the biggest beneficiary if Greenfield were excluded from the ballot. I’ve revised that view after talking with Greenfield supporters who were outraged by Axne’s March 23 e-mail and memo, enclosed below. To me, those messages were hardball politics; to some Democrats, they crossed a line.

D’Alessandro built up a lot of goodwill by helping collect signatures for Greenfield on the last day of the filing period. The other Democratic candidate, Eddie Mauro, said in a March 23 statement,

I commend Theresa Greenfield for stepping up to run for office. She has demonstrated class and integrity in both her handling of this situation and her campaign. Hers is a voice for our shared priorities as Iowans. I am hopeful there will be a place for Theresa in public service in the future regardless of the outcome of this election. I welcome her continued candidacy and have given her my commitment that I will not challenge the decision regarding her standing on the ballot.

UPDATE: The central committee members who believed the election panel would sort out the legal questions were mistaken.

The panel rejected Craig Robinson’s challenge to Greenfield’s nomination, which he had filed on March 23. They further said they lacked jurisdiction to decide whether Iowa Code 43.23 applies. Rynard reported, “Pate made it clear that he was annoyed that Miller hadn’t issued a legal opinion from the Attorney General’s office on the matter yet.”

Meanwhile, the secretary of state told the Des Moines Register’s Jason Noble after the panel’s hearing that he “will certify” Greenfield for the primary ballot. So she’s in the race unless someone files suit to stop her candidacy.

D’Alessandro and Mauro benefit from a field that includes two women rather than one. Now Axne can either challenge Greenfield’s candidacy in court, which will make a lot of Democrats mad, or accept the decision of insiders who punted to a body that punted again. That hardly seems fair to the first candidate in this race to file, with plenty of time and valid signatures to spare.

LATER UPDATE: Pate did not certify Greenfield for the IA-03 ballot after receiving advice from the Attorney General’s office on March 28. Miller said Chapter 43.23 “is, in essence, a substitution provision. It provides political parties a safety valve to fill candidate slots that unexpectedly become vacant due to the death or withdrawal of a primary candidate. Its purpose is to encourage and ensure contested primaries. It is not a do-over provision.”

Press release from Cindy Axne’s campaign, March 23:

(Des Moines, IA) Today, Democratic Congressional Candidate Cindy Axne released a statement to the members of the 3rd District Democratic Central Committee regarding the extraordinary measures the Theresa Greenfield campaign is asking them to take in order to put her on to the ballot.

Cindy Axne said, “Every single day on the campaign trail, I promise Iowa voters that I will never stop fighting when it comes to doing the right thing. It’s what I’ve done throughout my life, and as a candidate for US Congress, that includes my responsibility to ensure we protect our election process and hold those running for office accountable. Anyone running for office should uphold the law, not seek to twist it in their favor.

Theresa Greenfield’s circumstance is unfortunate, but the buck stops with the candidate. Despite multiple attempts, she has not qualified for the ballot. I am truly sorry for the position in which she finds herself, but we cannot ignore the integrity of our election process. Legal opinions support the fact that the statute Ms. Greenfield is trying to use simply does not apply in this case.

Despite the great personal tragedy of my mom unexpectedly passing away in the middle of petition gathering, I met and exceeded the obligations and earned my place on the ballot. I didn’t shrink from my responsibilities, and neither did my fellow candidates Eddie Mauro and Pete D’Alessandro; each of us, and our campaigns, played by the rules and did the hard work required of us.

What is most important is that we – 3rd District Democrats – are in a position to defeat David Young in November and put this seat back in Democratic hands so working families once again have a voice in Washington. This continued turmoil and request for extraordinary measures unsupported by the law are giving Republicans the opportunity to discredit Democrats by invoking backroom deals and ballot fraud. These accusations are harmful to the party and unfair to whoever our eventual nominee is. Rest assured, if the committee yields to Ms. Greenfield’s request, we will be hearing about this well into the fall. I fear this could help hand Republicans the election.

I am not afraid to stand up to the powerful and be a voice for common sense, even when it’s uncomfortable – as it is now. It’s how I’ve lived my life and it’s why I’m running for Congress. And I urge our 3rd District Central Committee Members to join me in doing what’s right and uphold the law by voting down this request.”

Memo that Axne campaign manager Joe Diver sent all central committee members on March 23:

On Monday afternoon, you will be asked to vote on whether to consider placing an additional candidate on the Third District Congressional ballot. There are currently three candidates who followed the correct procedures, submitted more than enough valid signatures, and are running active, enthusiastic campaigns. None of those candidates opens the party up to charges that it has acted in an illegal and secretive manner by placing an additional candidate – one who, despite numerous attempts, was unable to secure the requisite number of signatures – on the ballot. Excellent legal analysis has been sent to this body by it’s [sic] chair as to why Iowa 43.23 does not apply in this case. I would like to offer some additional information for you to consider.

A candidate who withdraws must be omitted from the primary ballot
According to Iowa 43.16, a candidate who has withdrawn cannot replace themselves on the ballot. “The name of a candidate who has withdrawn or died at a time in accordance with this section shall be omitted from the certificate furnished by the state commissioner under section 43.22 and omitted from the primary election ballot.”

No qualified candidate has withdrawn or died
The nominating petitions Theresa Greenfield admitted to being fraudulent and were filed and later withdrawn by the Greenfield campaign not only contained forgeries, but also just barely met the overall signature threshold as well as the signature thresholds in several counties. It is likely that when fraudulent signatures are removed, these nominating petitions did not meet the minimum standards. This means that no qualified candidate has withdrawn from the race.

Adding a candidate to the ballot is likely to result in litigation
Due to the overwhelming evidence that the statute being invoked does not apply in this case and that therefore the Third District Central Committee does not have the power to add a candidate to the ballot, it is exceedingly likely that a Republican or Democratic candidate will seek and receive legal relief from this action.

The conditions to move forward with a vote laid out by the Chair have not been met
In his email on Friday, March 16th, Third District Chairman Bill Brauch laid out two conditions that needed to be met in order to continue with a nominating convention. Neither has been met. Neither the Attorney General nor the Secretary of State have given favorable opinions as to the applicability of 43.23 in this case.

Taking this action will taint the Third District nominee and the entire Democratic ticket
Taking this extraordinary step will hand Republicans all the ammunition they need to paint the entire Democratic ticket as complicit in voter fraud and willing to make backroom deals for the sake of politics. As Democrats, we have fought Republican efforts to suppress the vote using phony, hyperbolic stories of voter fraud. We’ve worked to enfranchise voters and to make our government more open and transparent. This action will set back those efforts and could endanger our entire ticket. In a year in which Iowa’s Third District can and should send a Democrat to Congress
to again give working families a voice in Washington, this action would force our eventual nominee to run under a cloud of suspicion and allegations of backroom deals and fraudulent ballot access. It will divide Democrats and force candidates to distance themselves from a party apparatus that should be an integral part of their campaign efforts.