League of United Latin American Citizens of Iowa v. Pate
Docket Watch 2020
By Drew Watkins
In League of United Latin American Citizens of Iowa v. Pate (LULAC v. Pate), the Iowa Supreme Court denied a request to block enforcement of a portion of Iowa’s absentee balloting law which requires county auditors to contact voters who submit defective absentee ballot applications in order to correct the errors.[1]
In June 2020, during the COVID-19 pandemic, the Iowa legislature passed, and the Governor signed into law, House File 2643 (HF 2643), which amended certain provisions of Iowa’s election law.[2] In particular, two sections of HF 2643, sections 123 and 124, altered Iowa Code section 53.2(4) to require that certain identifiable information must be provided by “a registered voter” in order to request an absentee ballot, and that county auditors must contact applicants within twenty-four hours to obtain or correct any deficient required information in an application.[3] Importantly, this law replaced a prior version that permitted county auditors to use “the best means available” to obtain missing information.[4]
Shortly after HF 2643 was enacted, plaintiffs—the League of United Latin American Citizens of Iowa and Majority Forward—brought suit seeking to block enforcement of the provision of HF 2643 that required county auditors to contact voters to cure flawed absentee ballot applications.[5] Alleging that Iowa’s law created an unconstitutional, severe burden on the right to vote, plaintiffs sought to allow county auditors to correct errors and omissions in applications sua sponte, without additional voter contact.[6] The district court denied plaintiffs’ request for a temporary injunction.[7]
In affirming the district court’s decision, the Iowa Supreme Court relied on its decision in Democratic Senatorial Campaign Committee v. Pate (DSCC v. Pate),[8] which upheld the requirement that the applicant provide his or her identifiable information, rather than having such information prefilled on forms mailed by county auditors. The Iowa Supreme Court determined that the “purpose of both requirements is to protect the integrity and security of the absentee ballot system.”[9]
Focusing on whether plaintiffs had demonstrated a likelihood of success on the merits to justify a temporary injunction, the Iowa Supreme Court applied the familiar Anderson-Burdick framework for evaluating statutes impacting state electoral processes.[10] Under this framework, when evaluating a state’s regulation of the voting process, the “rigorousness” of a court’s review “depends upon the extent to which a challenged regulation burdens” constitutional rights.[11] If a restriction is “severe” the regulation must survive strict scrutiny—that is, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’”[12] However, if a regulation imposes “only ‘reasonable, nondiscriminatory restrictions … the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”[13]
Applying the Anderson-Burdick framework, the Iowa Supreme Court determined the burden imposed by the Iowa statute on voters’ constitutional right to vote was not severe. In so doing, the Iowa Supreme Court determined that the challenged provisions in DSCC v. Pate and LULAC v. Pate, were “two sides of the same coin,” both intended to ensure that the voter completes the absentee ballot application “as a means of assuring the application comes from the voter.”[14] In effect, the Iowa Supreme Court determined, plaintiffs were attempting to relieve the responsibility on voters to complete the application (which the court found to be a nonsevere burden in DSCC v. Pate) by allowing the county auditor to correct any errors or omissions.[15] Instead, the law provided “the applicant a second chance to fill out the application correctly.”[16]
Weighing the nonsevere burden imposed by Iowa’s statute against Iowa’s interest in ensuring its elections are free from fraud, the court noted that under Iowa election law, “anyone can turn in an absentee ballot request on behalf of another person.”[17] Accordingly, incorrect and omitted information on an application “raise potential concerns about whether the person completing the form is in fact the registered voter.”[18] As such, “[t]he auditor’s direct communication with the voter furthers the integrity of absentee voting by helping to ‘ensure that the person submitting the request is the actual voter.’”[19]
Although the court recognized that HF 2643 was not passed in response to evidence of actual fraud, the court reasoned that the “legislature need not ignore potential threats, and ‘should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively.’”[20] Moreover, the absence of actual fraud had “little significance” given the minimal burden imposed by the law.[21] As the court explained, the Iowa Supreme Court has long recognized the prevention of fraud to be a legitimate interest in regulating absentee ballot requests.[22]
In addition, the court took a dim view of the record established by plaintiffs in support of their case. First, the Iowa Supreme Court found that the plaintiffs had presented no evidence of anyone actually being stopped from voting as a result of the challenged statute.[23] Additionally, in response to plaintiffs’ hypothetical concern that voters could be confused about the status of their ballot request, the court pointed out that the Secretary of State allows voters to track their request online.[24] Also, pointing to public data that showed only a small percentage of absentee ballot requests had yet to be fulfilled, and that over 90% of unprocessed requests originated from two counties which had to recall unlawfully prepopulated ballot request forms, the Iowa Supreme Court questioned the magnitude of plaintiffs’ concerns.[25] In particular, the court noted that the data called into question plaintiffs’ expert witness who had predicted a “tsunami” of requests leading up to the request deadline when, in fact, “the actual data show[ed] daily decreases [sic] in ballot requests … [and] yet-to-be-mailed ballots.”[26]
Finally, the court summarily rejected plaintiffs’ claims that the statute violated the Iowa Constitution’s equal protection clause and procedural due process protections. The court found that plaintiffs offered no evidence to support an equal protection claim and, in any event, it held that variations among county auditors’ in their cure practices did not, without more, establish an equal protection violation.[27] Additionally, in rejecting the procedural due process claim, the court noted that it largely overlapped with the court’s holding “as it relates to the permissible balance between election security and access to voting.”[28] The court also highlighted additional safeguards in place to protect the right to vote including that the Secretary of State mailed an absentee ballot application to every registered voter, that the ballot request forms contained clear instruction, that county auditors were compelled to contact voters to cure insufficient applications, and that Iowa had extensive early absentee and in-person voting periods in addition to election day voting.[29]
Writing in dissent, Justice Oxley distinguished between what she termed the “front-end process of filling out the form correctly,” and the “back-end process of timely correcting the errors … and getting an absentee ballot back to the voter in time to use it.”[30] In the dissent’s view, “[t]he front-end and back-end provisions impose significantly different burdens on Iowa voters’ ability to actually receive an absentee ballot,” and this difference “tips the scale differently in this case than it did in DSCC v. Pate.”[31] Applying a higher standard in light of a perceived higher burden on the right to vote, the dissent weighed “the evidence in the record” suggesting a likelihood that thousands of Iowa voters will not receive an absentee ballot in time, against the state’s “mere incantation of ‘integrity of the election system’ and ‘voter fraud’” to conclude that plaintiffs have shown a likelihood of success on the merits and are entitled to a temporary injunction.[32] In response, the majority countered that the dissent: (i) confused “the burden on the voter with the potential burden on county auditor;” (ii) mistook the “facts on the ground with the predictions of a party’s retained expert;” and (iii) overstated the distinction between “front-end” and “back-end” processes which are “really one verification method.”[33]
In LULAC v. Pate, the majority reaffirmed the state legislature’s prerogative to enact nonsevere burdens on the voting process in an effort to combat fraud in elections. The court even floated the notion that protecting “public confidence in the electoral process” may suffice to impose “minimally burdensome regulations” on the right to vote.[34] In the aftermath of the 2020 election cycle, and considering that absentee and early voting will likely sustain increased use in future elections, state legislatures will be looking at ways to ensure the integrity of their elections. It is likely that many of the changes state legislatures make to their voting process will be challenged, and the bounds of a state’s regulation of its elections may be tested.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.
[1] League of United Latin Am. Citizens v. Pate (LULAC v. Pate), No. 20-1249, 2020 Iowa Sup. LEXIS 89, at *3-4 (Oct. 21, 2020) (per curiam).
[2] Id. at *4.
[3] Id. at *4-5; see also Iowa Code § 53.2(4)(a) and (b).
[4] LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *5.
[5] Id. at *5-6.
[6] Id. at *2.
[7] Id. at *6-7.
[8] Democratic Senatorial Campaign Comm. v. Iowa Sec’y of State (DSCC v. Pate), No. 20-1281, 2020 Iowa Sup. LEXIS 88 (Oct. 14, 2020) (per curiam).
[9] LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *3.
[10] Id. at *9.
[11] Burdick v. Takushi, 504 U.S. 428, 434 (1992).
[12] Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
[13] Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).
[14] LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *10 (emphasis in original).
[15] Id.
[16] Id.
[17] Id. at *11 (citing Iowa Code § 53.17(1)(a)).
[18] Id.
[19] Id. at *12 (quoting DSCC v. Pate, 2020 Iowa Sup. LEXIS 88, at *8).
[20] Id. at *12-13 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986)).
[21] Id. at *12.
[22] Id. at *13 (citing Luse v. Wray, 254 N.W.2d 324, 329-30 (Iowa 1977) (en banc)).
[23] Id. at *16.
[24] Id. at *17.
[25] Id. at *18-19.
[26] Id. at *19-20.
[27] Id. at *23-24.
[28] Id. at *24.
[29] Id. at *25.
[30] Id. at *27 (Oxley, J., dissenting).
[31] Id. at *28-29.
[32] Id. at *29.
[33] Id. at *20-22.
[34] Id. at *14 (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)).