State Seeks to Dismiss Lawsuit Challenging Change in Voting Rule

By Rod Boshart, Reporter

DES MOINES, Iowa – Iowa Secretary of State Matt Schultz said Friday he hopes access to federal citizenship data will help state officials determine whether non-Iowa citizens have voted illegally in past elections and take steps to prevent anything improper in the future.

Based on comparisons of state voter registration and driver's license records, Schultz determined that 3,582 foreign nationals registered to vote in Iowa since 2008 and that about 1,200 voted in the 2010 general election and that more than 1,400 cast ballots since the 2010 election. What is unknown, he said, was how many of those people became U.S. citizens after they received an Iowa driver's license, permit or identification card from the state Department of Transportation.

"We have evidence here that there is a potential that non-citizens are voting in the state," Schultz told a Statehouse news conference he held Friday with Iowa Attorney General Tom Miller – who is defending Schultz, a Republican, against a lawsuit challenging the legality of two emergency administrative rules that Schultz enacted last month to facilitate the state's access to a federal immigration status database. Miller's office asked a Polk County judge to deny a stay and dismiss the lawsuit brought by the ACLU of Iowa and the League of United Latin American Citizens (LULAC) of Iowa.

"What the secretary outlines is a process that tries to address a fact that he ran into earlier this year that he couldn't ignore," said Miller, a Democrat. "Nobody that has control over elections can ignore 3,582 people who sometime during the last four years were not citizens but are now registered – about a third of which have voted." He said the steps taken are a balancing effort to prevent fraud without suppressing or chilling the participation of legitimate citizens.

"We're trying to act responsibly. We're not trying to overreact and obviously we're working across party lines to try to accomplish that," Miller added. He said more information is needed before it could be determined whether any wrongdoing has taken place that would warrant criminal prosecution by a county attorney.

Schultz said the rule change was put on a fast track due to time constraints for the upcoming Nov. 6 election and the statutory deadline for challenging voter registrations. Iowa law prevents removal of an individual from the registration records unless a complaint is filed more than 70 days prior to the election – which means the deadline this election cycle is Aug. 28.

"Once an election occurs and someone has cast their vote, we can't unring that bell," he said.

Schultz noted that the window is closing for his office to match Iowa's registration list with federal data that would enable his office to accurately determine an individual's immigration status, raising the likelihood that "it would be impossible to have their names removed" before the 2012 election. However, he wants to compile an accurate list that county auditors could use to challenge absentee ballots and prevent people not authorized to vote from casting ballots at Iowa polls.

He said he decided to forego the normal rule-making process and timeline that can take at least 108 days and sometimes up to six months to make changes in the interest of balancing the rights of individuals with the need to maintain the integrity of Iowa's voting process.

Under the procedure Schultz outlined, a voter would have 14 days window to dispute the finding. After that, a citizen could file a complaint in the voter's home county seeking to remove the voter from the registration list. That would trigger a county hearing and the outcome could be appealed to district court. He said the emergency rule provides due process to anyone who believes their voting rights are being improperly challenged without simply purging registrations called into question as other states have done.

"This is an anti-purge rule," Schultz said.

"For individuals suspected of being illegally registered to vote, it provides a number of safeguards to ensure that my office is proceeding on valid information, and it provides notice and opportunity for an individual to be heard prior to removal from the registration records," he added. "For all other voters, the rules provide a transparent, uniform system for investigating and removing ineligible voters from registration records."

On July 17, the U.S. Department of Homeland Security approved Iowa's application for access to Systematic Alien Verification for Entitlements (SAVE) program database, which is maintained in the agency's U.S. Citizenship and Immigration Services.

"The state's ability to access this federal database is a very important safeguard for anyone whose immigration status may have been wrongly called into question," Schultz noted. "Since this can impact something as important as someone's right to vote, I think it's vital to make sure that we have accurate information before beginning the process of removing anyone from the voter registration rolls."

In bringing the lawsuit, ACLU and LULAC officials accused Schultz of abusing his power in a plot to disenfranchise Latinos and other voters ahead of the presidential election in Iowa, which is viewed as a key battleground state in the 2012 election. The petition filed by the groups in district court in Des Moines alleged that Schultz's office exceeded its power in adopting the rules and enacted them improperly on an emergency basis. The rules are also too vague and "pose a substantial risk of erroneously depriving qualified voters in Iowa their fundamental right to vote," the petition says, asking a judge to declare them invalid and halt their implementation.

Ben Stone, ACLU of Iowa executive director, said Schultz "by his own public admission" does not have time or permission to use federal citizenship records to purge the rolls before the election.

"This is due in no small part to his decision to wait until weeks before the election to promulgate rules secretly and without public input," Stone said in a statement. "His negligent delay cannot serve as justification for his avoiding public scrutiny or for removing voters so close to an election.

""If allowed to take effect, these emergency rules will permit the use of unspecified databases -- not just the SAVE database -- to purge registered voters from the list using unspecified criteria. The 14 days permitted in the rules to challenge ones removal is laughably insufficient, considering how slow government bureaucracies can move," he added. "Voting is such an important right that rules regarding the elimination of registered voters should be adopted with full public input and care in drafting using specified criteria and reliable sources."

A hearing has not been set in Polk County District Court on the state's request to deny a stay and dismiss the lawsuit.
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