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Civic Skinny

Court set to hear arguments on felons’ voting rights.

3/23/2016

What is an “infamous crime?” And who should decide that question? And who cares?

The first two questions will be argued before the Iowa Supreme Court next week in an expanded session — each side has been given twice the time normally allotted to argue a case that has attracted friend-of-the-court briefs from all sides.

The answer to the third question — who cares? — is this: Tens of thousands of Iowans who have forever lost their right to vote after being convicted of a felony. And tens of thousands of Iowans who will be convicted of felonies in years to come. And, perhaps, a lot of politicians in cities where Iowa has penitentiaries.

Here’s the issue: The Iowa Constitution disqualifies two classes of people from voting: those deemed mentally incompetent to vote and those “convicted of any infamous crime.” But it doesn’t define “infamous crime.” Is it the crime itself that must be “infamous?” Or is “infamous” determined by the length of the sentence?

The Legislature says, in effect, it is based on the length of the sentence. It has said that anyone convicted of a felony loses forever the right to vote. In Iowa, a felony is any crime punishable by imprisonment of two years or more, and in barring felons from voting the Legislature makes no distinction between a murderer and a three-time drunk driver, a woman who kidnaps an infant and a guy who steals a jalopy, or a man who rapes a woman and a woman who sells marijuana to the guys in the office.

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All of those crimes are felonies, and all of those criminals lose their rights to vote in this state.

(A governor can restore rights, and Tom Vilsack automatically restored voting rights of felons after their sentences were served. Terry Branstad does not do that. Restoring rights is not the central issue in this case, though; it’s about taking away the rights in the first place.)

The issue of voting rights isn’t clear cut — which is, of course, why it’s in court. Statutes passed by the Legislature are “cloaked with the presumption of constitutionality,” the Iowa Supreme Court has said. But, notes a brief on behalf of a woman denied the right to vote, “the determination of whether an offense is infamous — upon which the right to vote rests — is not subject to the changing whims of the Legislature.”

Indeed, those wanting the court to narrowly define “infamous crime” — the American Civil Liberties Union, the League of Women Voters and the NAACP Legal Defense Fund, among others — say the Legislature has overstepped its bounds.
If those groups win the day, the Court could say that thousands should never have had their voting rights canceled and now should have them restored. That would include, presumably, people who are in prison — and thousands who will be. (“Who’s going to be the next mayor of Anamosa?” joked one man familiar with the case.)

But, first, the Court would have to define “infamous crime.”

That doesn’t appear to be easy. Last year, the Court said “felony” and “infamous crime” are not synonymous. But, in a 3-to-2-to-1 decision (Justice Brent Appel had recused himself), the plurality offered little guidance to county auditors who must determine who can vote and county attorneys who can prosecute those who vote illegally. (The state associations of auditors and county attorneys have weighed in on the side of the Legislature’s rule, though in a separate brief Polk County Auditor Jamie Fitzgerald while wanting a clear definition would “welcome the privilege of facilitating the elections in Polk County in a manner which reverses course on 100 years of faulty disenfranchisement and allows all those qualified to participate in our democracy.”)

In last year’s case, the three-justice plurality provided some general guidelines. An infamous crime, it said, must be particularly serious, must endanger the integrity of the election process, and must involve criminal intent. It then offered three possible standards for further defining “infamous crime:” Offenses that are an affront to democratic governance, crimes of moral turpitude, and a crime of fraud or deceit or falsehood — perjury, counterfeiting, and the like — which is known as “crimen falsi.”
Those aren’t exactly what lawyers call “bright line” definitions that provide clear guidance. But, as lawyers for the disenfranchised Iowan note, “the assurance of Constitutional rights does not depend on ease of administration.”

The case arose in Lee County when Kelli Jo Griffin showed up to vote on Nov. 5, 2013, in a municipal election in Montrose. After the election, the county auditor went through the rolls of voters and decided Griffin was ineligible to vote because she was convicted in 2008 of delivery of 100 grams or less of cocaine, a felony. She was charged with perjury — another felony — for registering to vote and voting. She pleaded not guilty, and a Lee County jury acquitted her. But she still was deemed ineligible to vote because of the 2008 conviction.

She then went to the Supreme Court, arguing that she never should have had her right to vote taken away in the first place. “Mrs. Griffin now wishes to register to vote and vote in all elections for which she is eligible — elections that impact her, her family, and her community — without fear of subsequent criminal prosecution,” her lawyers say.

The case will be argued next Wednesday at 9 a.m. It will be streamed live on the court’s website and on YouTube. CV

A THOUGHT

Perhaps the NCAA tournament in Des Moines last week might have been a success if only Des Moines had had a big, new convention hotel. CV

A QUOTE

Syndicated columnist Mark Shields talking on public television about the Supreme Court controversy: Sen. Charles Grassley “is a tower of Jell-O.” CV

Political notes

The Cook Report, the nonpartisan political analysts, has just shifted the Congressional race in Iowa’s Third District from “lean Republican” to “tossup.”

First-term incumbent David Young “remains somewhat undefined and is exactly the type of Republican [who] could get dragged down by a Trump or Cruz loss,” Cook says. It thinks the Democratic nominee will be Jim Mowrer or Michael Sherzan, not mentioning Desmund Adams.

Gary Kroeger, who was running for the Democratic nomination for Congress in the First District, has changed his mind. The Waterloo adman — and onetime “Saturday Night Live” actor — has decided instead to run for the Iowa Legislature against Republican incumbent Walt Rogers, who has represented the Cedar Falls area since 2011.

The deadline for getting on the primary ballot for legislative seats passed last week. Four area incumbents will have challengers, and two Democrats will square off for the Iowa Senate seat being vacated by Dick Dearden. Those two are his daughter, Pam Conner, and lawyer Nate Bolton. Dearden represented the east side of Des Moines.

Jo Oldson, the Democrat who represents much of the west side in the Iowa House, is being challenged by newcomer Eddie Mauro. Mauro, the nephew of Iowa Labor Commissioner Michael Mauro and County Supervisor John Mauro, faces an uphill fight. Oldson has been in the Legislature since 2003.

Democrat Brian Meyer, the former City Councilman who is in his second term representing Easter Lake and parts of south Des Moines, is being challenged by Jim Addy.

First-term Republican Jake Highfill of Johnston, who beat incumbent Erik Helland in a primary two years ago, is being challenged by Christian DenOuden.

And in Ankeny, four-term incumbent Republican Kevin Koester is being challenged by insurance-man Brett Nelson.

In a move that surprised some Democrats, Joe Riding has filed to run for the Iowa House seat he lost two years ago to Republican Zach Nunn. Riding served one term representing the Altoona district but lost by 1,500 votes to Nunn two years ago. Nunn is seeking reelection.

Steve King, the Republican Fourth District Congressman who suddenly finds himself in a primary against legislator Rick Bertrand of Sioux City, predicts “an all-out war between conservatives and the political elite in D.C.” King, always good for a quote (remember the immigrants with “calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert?”), says “a few very rich and spoiled establishment operatives are throwing a political tantrum and have vowed to ‘teach me a lesson.’ ” He says they’re mad because he supported Ted Cruz in the caucuses — he doesn’t mention his far, far right voting record — and says, “They’re coming after me with everything they’ve got.”

The caucuses caused a lot of independent voters in Polk County to change their registration and caused other people to register for the first time. Since Feb. 1, the Democrats have picked up 6,530 voters and the Republicans 4,571. Another 2,832 people registered for the first time.

As of the other day, there were 114,043 Polk County residents registered as Democrats, 90,442 as Republicans and 85,880 as independents. CV

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