DES MOINES, Iowa (CN) – The Iowa Supreme Court heard arguments Thursday in the state’s appeal of a temporary injunction halting enforcement of its new law restricting absentee voting.
The League of United Latin American Citizens of Iowa, or LULAC, and an Iowa State University student sued Iowa Secretary of State Paul Pate in May, calling the state’s new restrictions on voting unconstitutional and particularly burdensome for minorities, disable and elderly voters.
The lawsuit challenges the constitutionality of absentee-voting restrictions, which took effect Jan. 1, as well as a new voter ID requirement, which does not go into effect until 2019.
Polk County District Judge Karen Romano issued an injunction against the absentee ballot rules last month, agreeing with the petitioners that they will cause voters irreparable harm by shortening by 11 days the absentee-voting period, requiring election officials to match signatures on absentee ballot applications and ballots, and requiring voters to supply an identification number on ballot applications.
Romano also ruled that the secretary of state’s publicity campaign about the timing of a separate voter ID rule set to go into effect in 2019 is confusing and interferes with Iowans’ right to vote.
Secretary Pate immediately filed an emergency appeal with the Iowa Supreme Court. The state’s high court heard arguments Thursday morning and is expected to issue a ruling ahead of the November election.
Assistant Iowa Attorney General Thomas Ogden told the justices Thursday there is no evidence that Iowans who cast absentee ballots in the November election will be harmed by the new restrictions, and that the restrictions were motivated by the Legislature’s legitimate concern for protecting the integrity of elections.
The plaintiffs’ counsel countered by arguing that voter harm is not speculative.
“There is a real likelihood of [voter] disenfranchisement of a significant number of people,” said Bruce Spiva of the Washington, D.C. firm of Perkins Coie, which is representing LULAC and Iowa State student Taylor Blair.
The justices posed questions to both parties on two of Iowa’s new absentee voting rules – comparing voters’ signatures on absentee ballots with signatures on registration forms, and shortening the absentee voting period from 40 to 29 days.
If an election official rejects a ballot because signatures don’t match, does that mean “the voter is out of luck” with no right to appeal? Justice Brent Appel asked.
“Doesn’t that raise a due-process problem?”
Ogden said the state has a right to set a deadline, and voters risk having their ballot rejected if they wait until it’s too late.
Justice Edward Mansfield wondered what standards election officials use to compare signatures, recalling the “hanging chad” issue in Bush v. Gore. Just eyeballing the ballots without a standard was too arbitrary, the U.S. Supreme Court said in that 2000 decision.
“There is that same room for arbitrariness” in the Iowa case, Mansfield said.
Ogden argued that since the rule went into effect in January there has been no evidence any ballot was wrongly rejected.
Justice Thomas Waterman questioned why the plaintiffs did not sue earlier, giving time for a verdict before the election.
“We are here on an emergency appeal,” Waterman said, adding the injunction has caused confusion and “a lot of scrambling” by election officials “because of the late date of this challenge.
The Iowa attorney general’s brief filed ahead of Thursday’s hearing made that point.
“LULAC did not seek a temporary injunction until June 27, 2018, more than one year after the challenged legislation was signed and more than six months after it took effect,” the brief states. “Since the legislation took effect, special elections have been held in more than fifty Iowa counties and the statewide primary election took place on June 5, 2018. LULAC waited through all of these elections to seek temporary relief, and the results of the elections show that it will not be irreparably harmed without it.”
Chief Justice Mark Cady asked Spiva how reducing absentee voting from 40 to 29 days is a constitutional problem.
Iowa voters have come to rely on an absentee-voting period of 40 days for 15 years, Spiva said, and once the state has granted a right that “made it easier for a lot of people to vote, if the state decides to cut back on that, you have to ask, why?”
He argued the state has not cited a good reason why it cut back on a fundamental right it had granted, echoing LULAC’s brief filed with the state’s high court.
“Even to the extent that there is no federal ‘constitutional right’ to vote by absentee ballot, where, as here, a state has enacted a law permitting absentee voting, it may not unduly burden that right, or make it more difficult for certain voters to vote by absentee ballot. To do so violates the U.S. Constitution,” the brief states.