Voters will decide in November whether to let Iowa Supreme Court Justice David May serve in that role for another eight years.

Justice May is heavily favored to keep his job. There is no organized statewide campaign against him, comparable to the well-funded efforts to oust Iowa Supreme Court justices in 2010 and 2012. His two colleagues who were up for retention in 2022 each received about 67 percent “yes” votes.

However, many reproductive rights advocates have circulated emails or social media posts calling on Iowans to vote against the newest justice, because in June he joined the 4-3 majority opinion that allowed the state to enforce a near-total abortion ban. Abortion is a more salient issue in this year’s election than it was two years ago.

It can be difficult for voters to find detailed information about the judges on the ballot. This post provides context on how Justice May has approached Iowa Supreme Court cases in several areas of the law. Bleeding Heartland previously covered the highest- and lowest-rated Iowa Court of Appeals and District Court judges who are up for retention this year.

If Justice May receives more “no” than “yes” votes—as happened with three Iowa Supreme Court justices in 2010—his tenure on the court will end in December. The State Judicial Nominating Commission would interview candidates for the vacancy and send three finalists to Governor Kim Reynolds for her consideration. Notably, nine of the seventeen commission members are themselves Reynolds appointees, so conservatives would likely end up on the short list of Supreme Court nominees.

HOW IOWA ATTORNEYS RATED JUSTICE MAY

May received a law degree from Drake University with high honors in 1998 and worked in private practice, primarily in civil litigation and insurance coverage, until Governor Terry Branstad appointed him as a Polk County District Court judge in 2016. Reynolds named him to the Iowa Court of Appeals in 2019 and to the Iowa Supreme Court in 2022.

For decades, the Iowa State Bar Association has surveyed its members about the judges on the ballot, tabulating the results in Judicial Performance Reviews every election cycle. Attorneys rate the jurists on various metrics related to their competence or demeanor, and provide an up-or-down assessment on whether they should be retained for another term (eight years for Supreme Court justices, six years for judges on other courts).

It’s typical for judges to receive retention ratings above 90 percent, and May got high marks in his previous positions. As a District Court judge, he averaged higher than 4.5 (that’s between “good” and “excellent”) in almost every category, and 97 percent of the 187 attorneys who evaluated him in 2018 recommended retaining him.

He received solid marks again as an Iowa Court of Appeals judge, averaging between 4.36 and 4.59 on every metric in the 2020 Judicial Performance Review. About 93 percent of the 206 attorneys who filled out that survey recommended retaining him.

This year’s review tells a different story. Just 64.7 percent of 278 respondents recommended keeping him on the bench. That’s the lowest retention rating for an Iowa Supreme Court justice since 2012, when about 63 percent of participating attorneys said David Wiggins should be retained.

Justice May’s best average scores on individual attributes were barely above a 4 out of 5. His lowest marks were for “decides cases on the basis of applicable law and fact, not affected by outside influence,” and “knowledge and application of the law.”

Since the Iowa State Bar Association began publishing judicial surveys, only a few other Supreme Court justices have received retention ratings below 80 percent. Two years ago, Justices Matthew McDermott and Dana Oxley received relatively low retention ratings of 77 percent and 81 percent, respectively. Their lowest score was for deciding cases based on applicable law and fact, rather than outside influences.

Those ratings reflect a sentiment I’ve heard some attorneys express in recent years: Iowa’s courts have become more politicized. Cases have less predictable outcomes, as the Supreme Court has overturned precedents more often.

Conservative law professor Derek Muller criticized the Iowa bar for concluding that over the past four years, Justice May “has dramatically worsened in his legal understanding, his clarity of writing, his bias, & his merit in being retained.” He attributed the downgrade to the recent abortion case, which was probably the biggest factor.

But in fairness, when lawyers evaluated Judge May four years ago, his judicial philosophy wasn’t fully apparent. Before joining the Supreme Court, his job was to apply precedents in cases assigned to him. He wasn’t in a position to make new law—and he wasn’t transparent about the approach he would use on the high court.

NO HINT OF ORIGINALISM FROM APPLICATION OR INTERVIEW

Then Judge May’s 2022 application to serve on the Supreme Court included many writing samples and supporting materials but few clues about his analytical methods. Asked why he was seeking the position, he answered with generalities about Iowa’s “strong, respected judicial system,” which needs “qualified candidates” to “take on the responsibility of judging.”

Asked how his appointment would enhance the court, he mentioned five attributes. He enjoys legal writing, especially about novel or complex issues. He has had varied life experiences, from growing up in a medium-sized town with no lawyers in his family to writing some 300 opinions as a Court of Appeals judge. He enjoys working with others to solve problems, decide cases, and address administrative issues. He is “committed to collegiality.” Finally, he is “committed to independent thinking”—happy to work with others to “find a solution on which we can all agree,” but also “glad to write a separate opinion” when appropriate.

Asked to provide “any additional information” the State Judicial Nominating Commission or governor should know about him, he wrote, “If chosen to serve, I promise I will do my best to support ‘the Constitution of the United States,’ to support ‘the Constitution of the State of lowa,’ and to ‘administer justice according to the law’ equally to all persons.”

The application asks judges to provide “at least three opinions that best reflect your approach to writing and deciding cases.” Judge May provided his majority opinion in Fishel v. Redenbaugh as “a sample of my work interpreting a statute in a case of first impression.” That decision looked closely at the text of relevant laws.

He also provided a District Court decision as an example of how he has addressed contract issues, and a dissenting opinion he wrote in a family law case on the Court of Appeals. The Iowa Supreme Court later reversed the appeals court, arriving unanimously at the same conclusion Judge May had reached in his dissent.

The application did not refer to the “originalist” approach, which calls on judges to analyze legal questions from the perspective of the white men who drafted Iowa’s constitution in the 1850s (or those who drafted the U.S. Constitution in the 1780s).

Similarly, Judge May stuck to generalities in his June 2022 public interview with the State Judicial Nominating Commission. In his opening remarks, he described the judge’s role as “relatively simple”: apply the law faithfully to resolve disputes before us, as opposed to finding issues outside the case to resolve or creating law out of personal preferences. He indicated that he would not go along to get along: “Iowans are entitled to seven independent minds on the Iowa Supreme Court. They don’t have to settle for just folks who are going to follow others.”

Commissioner Dorothy O’Brien alluded to the “perceived politicization of the court and its rulings.” She asked Judge May to address the need for the court to “avoid exercising personal preferences including politics and religion.” He replied that “perception of political bias” is one of several challenges facing the Supreme Court, adding that “the best way to avoid the perception that judges are making up the rules as they go along” is to carefully follow the text of the statutes and not substitute their own views.

He didn’t say he would interpret the constitution based largely on how a group of men understood it in 1857.

This video shows the entire interview with the State Judicial Nominating Commission. I’ve cued it up to an important exchange near the end.

Attorney Henry Bevel III asked, “As a judge on the Court of Appeals, there are certain constraints that you have that would not be present—or would they be present on the Supreme Court?”

Judge May replied, “Certainly I’ve written more than one opinion that says, ‘Well, it looks like the answer is X but there’s a Supreme Court case that says Y, so the answer’s Y.'” That is not a criticism of the Supreme Court, he explained, “that is just how our process works. And even when you’re on the Supreme Court, stare decisis still matters. Precedent still matters. It’s not like you just wake up one day for no good reason and undo cases.”

He added that “under the right circumstances,” the Supreme Court “does have the opportunity to revisit its prior decisions. The Court of Appeals doesn’t.”

He didn’t clarify how and when the court should overturn its precedents, nor did he use the term “originalism.”

As it turned out, that concept was central to some of the most consequential rulings of Justice May’s tenure so far.

ABORTION CASES

If Iowans know one thing about the Supreme Court justice on the ballot, it’s that he was among the four who voted to let the state ban almost all abortions. Republican activists in several counties are urging supporters to vote yes on his retention for that reason. And many Democrats don’t need any other reason to vote no.

The conservative majority had already overturned our state’s strong abortion rights precedent in June 2022. Nevertheless, Justice May was essential to the rollback of reproductive freedom in Iowa. Three of the court’s conservatives—Chief Justice Susan Christensen and Justices Edward Mansfield and Thomas Waterman—would have found the near-total abortion ban unconstitutional. Former Justice Brent Appel would have struck it down as well, had he not reached the mandatory retirement age in 2022, giving Reynolds the opportunity to appoint her fifth Supreme Court justice in five years.

Justice May hasn’t written any opinions about abortion regulations. But he has joined colleagues in holding that the state need only show some “rational basis” for banning abortion. Under that standard, there is no need to balance the government’s interest in preventing abortions with a pregnant person’s bodily autonomy. If the state wants to “protect unborn life,” that’s the end of the story—even if being forced to carry an unwanted pregnancy would derail a mother’s education or career, put her physical or mental health at risk, leave her trapped in an abusive relationship, or jeopardize her ability to care for other children.

Justice May would have stripped Iowans of their reproductive freedom a year sooner. In June 2023, the Iowa Supreme Court deadlocked on whether to lift a permanent injunction on a previous version of the abortion ban. That law stayed blocked, because the 3-3 decision left the lower court’s ruling in place. Justices Christopher McDonald, McDermott, and May would have let the state enforce that law.

Republicans passed the current abortion ban (almost a carbon copy of the 2018 law) at a special legislative session last summer. The ensuing lawsuit reached the Iowa Supreme Court on interlocutory appeal this year. Justice McDermott wrote the majority opinion in Planned Parenthood of the Heartland v. Reynolds VI, joined by Justices May, McDonald, and Oxley.

Why isn’t it a due process violation to ban abortion before most people know they are pregnant? According to the Iowa Supreme Court majority, there are only two ways courts can evaluate a due process claim. Strict scrutiny (the highest bar for the government to clear) applies if the challenged law implicates a fundamental right. “But if the right at stake is not a fundamental right, then we apply the rational basis test and determine whether the law is rationally related to a legitimate state interest.”

How can you tell when a right is fundamental? If the constitution does not specifically mention the right, courts should consider whether it is “deeply rooted” in our “history and tradition” and “implicit in the concept of ordered liberty.” But a “right to an abortion, as the historical record shows, is not rooted at all in our state’s history and tradition, let alone ‘deeply’ rooted.”

Chief Justice Christensen called out the absurdity of that approach: “the majority perpetuates the gendered hierarchies of old when women were second-class citizens. […] It is not whether abortion, with the polarizing reactions it evokes, is a fundamental right but rather whether individuals have the fundamental right to make medical decisions affecting their health and bodily integrity in partnership with their healthcare provider free from government interference.” She added, “this statute prioritizes the unborn over the living, placing pregnant women in grave harm in the process.”

Even Justice Mansfield, Iowa’s leading originalist, wrote in his dissent, “Whatever may have been the scope of article I, section 9 in 1857, today it protects an individual’s right to make personal decisions regarding procreation and parenting.”

A prominent legal group and two past presidents of the Iowa State Bar Association have argued against removing judges from office due to a disagreement over opinions. They assert a no vote on retention would jeopardize judicial independence. Meanwhile, some abortion rights advocates hesitate to vote against Justice May for pragmatic reasons, since Reynolds would surely appoint a like-minded judge to replace him.

Retired attorney Barb Diment made the case for voting no:

No competent lawyer in America would consider legal history and ignore the past 50 years of experience and reliance on an established right of self-determination, as this court did. […]

May also agreed by his vote that no evidence about the effects of the law needed to be presented. They lifted an injunction without requiring a new hearing in the lower court on the actual merits. The May court took away the rights of women and families based on no actual evidence.

There is nothing about voting against this justice that undermines independence of our courts. In fact, voting is our only remedy. 

The Planned Parenthood cases aren’t the only noteworthy aspect of the high court’s work.

CRIMINAL LAW CASES

The Iowa Supreme Court has considered dozens of criminal cases over the past two years—far more than I can review here. A few opinions authored by Justice May seem particularly important.

One-way video testimony for children ruled unconstitutional

Justice May’s most controversial majority opinion, State v. Derek Michael White, was published on the same day in June 2024 as the latest Planned Parenthood case. It resembled the abortion case in other ways too: it was a 4-3 ruling, grounded in originalist analysis, that overturned a precedent. The split was the same as well: Justices May, McDonald, Oxley, and McDermott in the majority, and Chief Justice Christensen and Justices Waterman and Mansfield in the minority.

The court ordered a new trial for White, convicted of child abuse and child endangerment, because “the Iowa Constitution does not permit one-way mirrors or other procedures that prevent witnesses from seeing the accused.” The defendant’s minor children had testified from the judge’s chambers, using a one-way closed-circuit television system.

The Iowa Supreme Court had previously upheld the use of such technology in cases where testifying in the presence of a defendant could be traumatizing for a child. But Justice May cited a number of 19th-century cases to demonstrate that “At the time when the Iowa Constitution was adopted, this confrontation right was understood to mean that the accused must be able to confront trial witnesses face-to-face. The Iowa Constitution guarantees that same protection today.”

As for the potential to compound traumatic experiences, the majority held, “the founding generation was familiar with crimes against children as well as the important role that child witnesses could play in the prosecution of those crimes.”

Chief Justice Christensen’s dissent argued, “Originalism has limits. It cannot account for a technology that didn’t exist in 1857—when the Iowa Constitution was ratified—and a type of case that would not have been brought in 1857.” She noted, “White was able to confront the two boys to a meaningful degree. He watched them as they testified, and they knew he was watching. White’s attorney was in the room with the boys and cross-examined them.” Whereas many state appellate courts have ruled such testimony is constitutional, “Iowa now stands alone.”

The White decision will lead to new trials for an unknown number of Iowans previously convicted of crimes against children. One of those defendants is a sex offender serving a life sentence.

It’s important to understand that in other contexts, Justice May’s rulings have not consistently favored criminal defendants seeking to assert their constitutional rights. As a District Court judge, he denied a defendant’s motion related to mistrial exhibits and was reversed by the Iowa Supreme Court. (That case is State v. Khamfay Lovan, on pages 42-51 of May’s judicial application.)

On the Court of Appeals, Judge May wrote an opinion affirming a defendant’s conviction on a narcotics charge even though officers found key evidence through a warrantless search. His reasoning was that by resisting arrest, the defendant “created probable cause that she was committing a new crime,” meaning “there were no grounds to suppress narcotics evidence discovered incident to the arrest.” (See State v. Edna Jean Wilson, on pages 179-188 of May’s judicial application.) The Iowa Supreme Court later unanimously reversed that decision and vacated the narcotics conviction, on the grounds that “the warrantless entry into Wilson’s apartment to arrest her was unlawful. Therefore, evidence related to her conviction of possession of cocaine obtained from the unlawful entry must be suppressed.”

In State v. Jesse Jon Harbach, which the Iowa Supreme Court decided in February, Justice May joined a 4-3 majority opinion that upheld a warrant for a blood draw, even though the law enforcement officer made demonstrably false statements on the search warrant application. Writing for the dissenters, Justice Waterman—who has often not landed on the criminal defendant’s side in a split decision—asked, “Imagine you find several pieces of rancid meat in your bowl of stew. Would you remove them and keep eating or discard the entire bowl? The district court correctly discarded the bowl. I would affirm the district court’s ruling granting the defendant’s motion to suppress after the court found Deputy Knipper intentionally or recklessly made materially false statements and omissions in his warrant application.”

Those other cases underscore that the White holding on child testimony reflects Justice May’s commitment to originalism as an analytical framework, rather than a general sympathy toward defendants’ rights.

Green light for more warrantless DNA collection

Another impactful opinion Justice May has written in the area of criminal law was State v. Jerry Lynn Burns from 2023. Advances in DNA analysis gave Cedar Rapids police a lead in the murder of Michelle Martinko, a notorious crime that had been a cold case for decades. They retrieved the suspect’s DNA from a straw left at a restaurant, and after analyzing the sample, were able to get a warrant for Burns’ DNA. He was later charged and convicted of first degree murder.

The central issue in the case was whether police violated Burns’ constitutional rights by collecting and analyzing his DNA from the straw without a warrant. Justice May wrote for the 5-2 majority that “there is no reasonable expectation of privacy, and the Fourth Amendment does not apply.”

Burns made no effort to “preserve” the straw “as private.” He left it on the table at a Pizza Ranch. It was open to collection by Pizza Ranch employees or fellow diners—whether those diners were civilians or, as happened, officers of the law. Burns could hardly have retained any subjective expectation of privacy in the straw.

The defendant argued that his DNA profile should be considered private, even if the straw was not. But the court saw “no practical difference between (1) DNA that a rapist leaves behind at a crime scene and (2) the DNA that Burns left on the straw at the Pizza Ranch. In both situations, a casual observer would not be able to see any DNA, much less any DNA profile.”

Justice Oxley wrote in a dissenting opinion,

Indeed, once you strip away the technological aspects of this action, not only does it begin to look like what we would traditionally classify as a “search” (e.g., reading through someone’s “papers” to determine where they were and what they did on a specific date), but it in fact looks like precisely the type of generalized, suspicionless search that the Framers sought to guard against. If the Fourth Amendment has nothing to say on this matter, there is no reason police could not have done the same thing to everyone in the Pizza Ranch, or everyone who lived in Cedar Rapids in 1979, or everyone, period.

Justice McDermott wrote separately in dissent that the court “must distinguish between the drinking straw and the DNA specimen on the straw.”

Even if we accept that Burns abandoned the straw, this does not mean that he also abandoned his DNA specimen on the straw. And as a result, the State could not extract and search the DNA specimen without a warrant. […]

Short of some hermitic existence in which a person somehow never leaves the confines of home, there’s no reliable way to protect against exposing your DNA to the government. Participating in life (setting aside, I suppose, some virtual reality sphere) is pretty much impossible without exposing yourself to the risk that the government could collect and analyze your DNA as you unavoidably and unconsciously discard it. The trap is always set and inescapable.

Whereas Justice May’s majority opinion likened DNA on a straw to a fingerprint a suspect may leave behind, Justice McDermott pointed out that a fingerprint reveals only a person’s identity and “stores no private information.” In contrast, DNA “arms those with the ability to analyze it with a vast trove of private details about a person.”

Finally, the dissent rejected the analogy to collecting a rapist’s DNA from a crime scene, since it is straightforward for law enforcement to obtain a warrant to collect DNA from a crime scene.

State v. Burns may lead to much more warrantless collection of DNA in Iowa.

Child endangerment statute narrowed

In State v Paula Lynn Cole, a case published this February, Justice May wrote for a unanimous court that vacated a mother’s conviction on child endangerment charges. Cole had left five children between the ages of 5 and 12 at home alone while she went shopping with her youngest child, an infant. A sibling argument broke out, and one of the children ran outside the building. But no child was lost or injured in any way.

A jury later convicted Cole of child endangerment, but the Iowa Supreme Court held that the state was required to prove the mother had “created” a substantial risk to her children. “A parent does not create a risk if that risk is part of the background risk of ordinary life. Rather, a risk is created by a parent when the parent’s behavior produces an identifiable risk that falls outside the range of risks that accompany ordinary life.”

Justice May’s opinion noted that Iowa law doesn’t set any minimum age for leaving children home alone, and therefore didn’t prohibit Cole “from leaving her five oldest children alone while she took the youngest to Walmart.” She wasn’t abusive toward her children, and no one was harmed in her absence. Given the frequency of vehicle accidents, there’s no evidence the kids were in more danger at home than if she had driven them to the store.

CONSTITUTIONAL CLAIMS AGAINST THE GOVERNMENT

The abortion case is the best-known example of the Iowa Supreme Court overturning recent precedents, as well as the most far-reaching, since it directly affects hundreds of thousands of Iowans who can get pregnant. Another important case for civil liberties is less well understood.

In May 2023, a unanimous court held that “plaintiffs can seek damages for constitutional violations only where specifically permitted by the Legislature.” That case, known as Burnett v. State, reversed a 2017 decision known as Godfrey II and other cases that had built on the precedent, such as the 2018 Baldwin case, relating to qualified immunity.

Andrew Mertens, executive director of the Iowa Association for Justice, called the decision “a major setback in the fight to protect the constitutional rights and freedoms of individual Iowans against the vast power of state and local government.” Justice Mansfield, who wrote the dissenting opinion in Godfrey II, authored the unanimous opinion in Burnett, which Justice May joined.

GOVERNMENT TRANSPARENCY

The Iowa Supreme Court has decided several cases related to open records over the past two years. Justice May wrote the unanimous 2023 opinion in Belin v. Reynolds, which held that plaintiffs including myself could proceed with all of our claims against Governor Kim Reynolds and her office.

Notably, that opinion clarified that an unreasonable delay in providing records could constitute a “refusal” to provide them—and by extension a violation of the open records law. The court also found the law applies to electronic records as well as to paper documents. Justices rejected the state’s arguments that constitutional concerns such as executive privilege or separation of powers precluded plaintiffs from pursuing a claim that the governor failed to provide records in a timely manner.

The Supreme Court did not consider the merits of our case. But soon after the Belin decision was published, the state settled our lawsuit and two other similar cases, and agreed to pay plaintiffs’ attorney fees.

This year, Justice McDermott wrote the court’s unanimous opinion in Kirkwood v Sand. The court held that the State Auditor’s office may have violated the law by not releasing one email chain until 106 days after the Kirkwood Institute filed a lawsuit. Justices sent the case back to District Court, where the auditor’s office will have the burden to show the delay was reasonable.

As for other disputed emails involving me or another journalist, the court said the auditor’s office “should present evidence for each email to establish that the specific email was actually received in the course of an audit or examination,” which would justify withholding them.

Justice May was in the minority on another case with implications for government openness. In Polly Carver-Kimm v. Reynolds, Justice McDermott wrote for a 4-3 majority, which held that a former state employee who says she was fired for fulfilling public records requests can pursue a “claim for wrongful discharge in violation of public policy.”

The dissenting opinion authored by Justice McDonald argued that “this court should imply a cause of action for wrongful discharge only where necessary to enforce the public policy at issue.” That wasn’t necessary in this case, dissenters maintained, because “The open records law allows any person to request and obtain public records. […] The requestor will know whether the legal custodian complied with the records request. The requestor has the capacity and incentive to bring suit to enforce the open records law.”

Not really. I might sue if an agency gave me nothing for many months, as the governor’s office had done. But if I received some unremarkable documents, I would have no way of guessing a boss had threatened to fire an employee if she provided more newsworthy material responsive to my request. The majority opinion in Carver-Kimm accurately observed, “Without legal protection for the custodian in this circumstance, it’s likely that the records will never be produced—and the records’ existence will never be known to the requesting party.”

POLITICAL CASES

Two other Iowa Supreme Court cases decided during the past two years may be of particular interest to those who follow politics.

A “strict compliance” standard for candidates whose nominations are challenged

In September, a unanimous court affirmed a lower court ruling that kept three Libertarian candidates for Congress off the general election ballot. That opinion, known as Gluba et al vs. State Objection Panel, was “per curiam,” meaning that it had no single author.

In the short term, the outcome was a victory for Republicans seeking to hold two competitive U.S. House districts. Named Libertarian candidates on the ballot would likely have received 2 percent of the vote or more, judging by other recent Iowa Congressional election results.

Some may argue that Gluba‘s long-term impact is limited. If the Libertarian Party of Iowa has major-party status in any future election cycle, the party’s candidates are unlikely to repeat the mistakes in the caucus-to-convention process that left them vulnerable to Republican objections this year.

On the other hand, now that the Iowa Supreme Court has held that an obscure code provision on county convention delegates requires “strict compliance,” not “substantial compliance,” Iowans can expect more aggressive efforts in future election cycles to knock candidates off the ballot over almost any technicality. For many years, Iowa’s State Objection Panel used a “substantial compliance” standard, which prioritized giving voters more choices when deciding whether to allow a candidate to appear on the ballot. This year, Republicans on the panel voted to remove the Libertarian candidates, and courts affirmed that decision.

The Supreme Court did not say strict compliance should be the standard for every election case, but the justices held in Gluba, “The general rule is that election laws governing candidate qualification for the ballot require strict compliance.” For that reason, the case opened the door to many other kinds of challenges to nominating papers.

Shielding Iowa legislators’ communications

In February of this year, May joined a unanimous opinion authored by Justice Oxley in Roby Smith et al. v. Iowa District Court for Polk County. That case stemmed from a lawsuit the League of United Latin American Citizens of Iowa (LULAC) filed to challenge voting restrictions Republicans enacted in 2021. LULAC subpoenaed some Republican state legislators who were not defendants, but were involved in drafting and passing the 2021 election bills. They sought records and communications between those lawmakers and people outside the legislature who may have influenced provisions making it harder to vote.

The lawmakers resisted the subpoenas, claiming such documents were protected by a legislative privilege. LULAC argued that legislative privilege doesn’t protect communications with third parties, and that such privilege is not absolute, and is outweighed in this case by other constitutional interests.

Further complicating the matter, the Iowa Constitution is one of only seven state constitutions lacking a “speech and debate clause.” The speech and debate clause is the source of legislative immunity (and the legislative privilege that derives from it) for members of Congress and lawmakers in most other states.

The Supreme Court held that three other provisions of the state constitution “support recognizing a legislative privilege.” That privilege extends to communications with non-legislators about the legislative process, because “The people’s ability to communicate with their elected representatives is vital to the effective exercise of legislative functions.”

The court did not decide whether legislative privilege in Iowa is absolute or qualified (meaning that in some circumstances, the balance of constitutional interests might weigh in favor of enforcing a subpoena against legislators). That’s because the communications at issue would point to legislative intent, and the court held that legislative intent is not relevant to LULAC’s claim that a voting restriction violates voters’ constitutional rights.

The long-term implications of this ruling are unclear. As for this case, the public will probably never learn who encouraged and helped Republicans enact more limits on voting and returning absentee ballots. Those restrictions remain in effect while LULAC’s lawsuit is pending.