Amended October 25, 2016 Kelli Jo Griffin v. Paul Pate, in His Official Capacities as the Secretary of State of Iowa, and Denise Fraise, in Her Official Capacities as the County Auditor of Lee County, Iowa

IN THE SUPREME COURT OF IOWA
No. 15–1661
Filed June 30, 2016
Amended October 25, 2016
KELLI JO GRIFFIN,
Appellant,
vs.
PAUL PATE, In His Official Capacities as the Secretary of State of Iowa,
and DENISE FRAISE, In Her Official Capacities as the County Auditor of
Lee County, Iowa,
Appellees.
Appeal from the Iowa District Court for Polk County, Arthur E.
Gamble, Judge.
Claimant appeals district court ruling holding her drug conviction
fell within the scope of “infamous crime” as used in article II, section 5 of
the Iowa Constitution. AFFIRMED.
Rita Bettis of ACLU of Iowa Foundation, Des Moines, and Julie A.
Ebenstein and Dale E. Ho of ACLU Foundation, Inc., New York,
New York, for appellant.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, Meghan L. Gavin, Assistant Attorney General, and Michael
Short, Lee County Attorney, for appellee.
2
Gary D. Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,
for amicus curiae Polk County Auditor Jamie Fitzgerald.
Coty R. Montag, Washington, D.C., John B. Whiston of Clinical
Law Programs, University of Iowa, Iowa City, until withdrawal, and then
John S. Allen of Clinical Law Programs, University of Iowa, Iowa City,
and Christina A. Swarns, Angel S. Harris, and Joshua A. Rosenthal,
New York, New York, for amicus curiae The NAACP Legal Defense &
Educational Fund, Inc.
Alan R. Ostergren, Muscatine County Attorney, for amicus curiae
Iowa County Attorneys Association.
Mark McCormick of Belin McCormick, P.C., Des Moines,
Carmen Beauchamp Ciparick of Greenberg Traurig, LLP, New York,
New York, and Myrna Pérez of Brennan Center for Justice at NYU School
of Law, New York, New York, for amicus curiae The Iowa League of
Women Voters.
Gordon E. Allen, Johnston, for amicus curiae Citizens United for
Rehabilitation of Errants.
Joseph C. Glazebrook of Glazebrook, Moe & Hurd, LLP,
Des Moines, for amicus curiae Iowa veterans.
Kristi L. Harshbarger, West Des Moines, for amicus curiae Iowa
State Association of Counties.
3
CADY, Chief Justice.
This appeal requires us to decide if the crime of delivery of a
controlled substance is an “infamous crime” under the voter
disqualification provision of the Iowa Constitution. The district court
held the crime is an infamous crime, and a conviction thereof disqualifies
persons from voting in Iowa. Following the analysis we have used in the
past to interpret provisions of our constitution, we agree and affirm the
judgment of the district court.
The term “infamous crime” was generally recognized to include
felony crimes at the time our constitution was adopted. This meaning
has not sufficiently changed or evolved to give rise to a different meaning
today. In addition, unlike some past cases when we have interpreted
provisions of our constitution, the facts and evidence of this case are
insufficient to justify judicial recognition of a different meaning.
Constrained, as we must be, by our role in government, we conclude our
constitution permits persons convicted of a felony to be disqualified from
voting in Iowa until pardoned or otherwise restored to the rights of
citizenship. This conclusion is not to say the infamous-crime provision
of our constitution would not accommodate a different meaning in the
future. A different meaning, however, is not for us to determine in this
case. A new definition will be up to the future evolution of our
understanding of voter disqualification as a society, revealed through the
voices of our democracy.
I. Background and Proceedings.
Kelli Jo Griffin is an Iowa resident. She is also a citizen of the
United States. She is forty-two years old. Griffin engaged in criminal
conduct that resulted in a 2008 conviction for the crime of delivery of
100 grams or less of cocaine in violation of Iowa Code section
4
124.401(1)(c)(2)(b) (2007), a class “C” felony. She was sentenced by the
district court to a suspended term of incarceration and given five years’
probation. 1 Griffin successfully discharged her sentence on January 7,
2013.
On November 5, 2013, Griffin registered to vote and cast a
provisional ballot in a municipal election in Montrose, Iowa. Denise
Fraise, the Lee County auditor, subsequently determined Griffin was not
eligible to vote due to the 2008 felony conviction, and rejected her ballot.
Griffin was charged and prosecuted with perjury for registering and
voting in the November 5 election. She was acquitted of this crime
following a jury trial.
On November 7, 2014, Griffin filed a petition in district court
against the governor of Iowa, the secretary of state of Iowa, and county
auditor Fraise. The petition asked the court to declare that her felony
conviction did not disqualify her under the Iowa Constitution from
voting, and it sought other relief in the form of an injunction and
mandamus to recognize and protect her right to vote.
The district court dismissed the governor from the lawsuit, and the
case proceeded to a summary judgment hearing. The court held Griffin
had been disqualified from voting when she was convicted of a felony and
further found the county auditor properly rejected her ballot. The
1Griffin was informed by her attorney at sentencing that her voting rights would
automatically be restored after discharge of her sentence. At that time, an Executive
Order signed by Governor Thomas J. Vilsack was in effect, which provided for the
automatic restoration of the right to vote after discharge from a felony sentence.
However, on January 14, 2011, Governor Terry E. Branstad issued a new Executive
Order rescinding the automatic restoration process and replaced it with a process that
considered any restoration of voting rights for convicted felons on a case-by-case basis.
In each case, the convicted felon is required to initiate an application requesting the
restoration of rights.
5
district court rejected her claim that her particular felony conviction was
not the type of conviction that disqualified a person from voting. It also
rejected her claim that the process to restore voting rights violated her
due process rights under the Iowa Constitution.
Griffin exercised her right to ask this court to review the decision of
the district court. On appeal, she argues her felony conviction did not
disqualify her under the constitution from the privileges of an elector and
the voter registration laws that exclude convicted felons who have not
had their rights restored from voting are invalid and constitute a
violation of her due process rights. Her due process claim is dependent
on her predicate argument that her felony conviction did not disqualify
her from voting under the constitution.
II. Standard of Review.
Summary judgment rulings are reviewed for correction of errors at
law. Baker v. City of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). If the
only concern is the legal consequences of undisputed facts, we resolve
the matter on summary judgment. Id. Constitutional challenges are
reviewed de novo. Zaber v. City of Dubuque, 789 N.W.2d 634, 636 (Iowa
2010).
III. Right to Vote.
Voting has traditionally been viewed in our democratic society as a
basic and fundamental right of citizenship. Chiodo v. Section 43.24
Panel, 846 N.W.2d 845, 848 (Iowa 2014) (plurality opinion). In our
representative form of governing, it serves to give a voice to the people.
Id. This voice is as important to the democracy as it is to those the
democracy governs.
Our constitution establishes the right to vote, but not among those
rights enumerated in our bill of rights. Iowa Const. arts. I–II. Our
6
founders chose to address voting in a separate article of the constitution
captioned as both a right and a privilege. Id. art. II, §§ 1, 5. The view
that voting is a privilege emanates from the constitutional limitations
placed on electors. Id. §§ 4–5. Electors must be citizens of the
United States and residents of Iowa. Id. §§ 1, 4. Additionally, otherwise-
qualified electors can be disqualified from voting. Under our
constitution, a “person adjudged mentally incompetent to vote or a
person convicted of any infamous crime shall not be entitled to the
privilege of an elector.” Id. § 5. Thus, voting exists as a fundamental
right for people who meet the constitutional qualifications of an elector
and are not disqualified by adjudication of incompetency or conviction of
an infamous crime. Id. §§ 1, 5.
IV. Role of the Court.
The sole issue in this case is whether the felony crime of delivery of
a controlled substance is an infamous crime. Under our system of
governing, this issue is now a question for this court to decide. The
legislature enacted a statute in 1994 defining an infamous crime as any
felony. 1994 Iowa Acts ch. 1180, § 1 (codified at Iowa Code § 39.3(8)
(2013)). 2 Yet under our democracy, people have the right to challenge
the constitutionality of a legislative enactment that directly affects them,
and the judicial branch of government has the responsibility to decide
the question. In Iowa, that responsibility ultimately falls to this court.
V. Analytical Framework.
Our task is to interpret our constitution to decide if it rendered
Griffin ineligible to vote and, in turn, permitted the county auditor to
2“ ‘Infamous crime’ means a felony as defined in section 701.7, or an offense
classified as a felony under federal law.” Iowa Code § 39.3(8).
7
reject her ballot. We must decide if the felony crime of delivery of a
controlled substance is an infamous crime.
In Chiodo, we recognized we had never developed a comprehensive
analysis to determine the meaning of the infamous-crime
disqualification. 846 N.W.2d at 851. It was unnecessary at that time,
however, to conduct the in-depth analysis needed to articulate such a
standard. 3 The crime claimed to be infamous in Chiodo was a
misdemeanor, and we were able to resolve the dispute under a standard
that only went so far as to exclude misdemeanor crimes from the
meaning of infamous crimes. Id. at 856–57. We understood the limited
nature of the opinion and saved a more complete analysis for a later
date. Id. at 857. Notwithstanding, the approach taken by the plurality
opinion was not out of line with our careful approach in interpreting our
constitution. We have often found it wise to take incremental steps in
developing constitutional law.
In taking the next step forward today to develop a more complete
framework to interpret the infamous-crime language, we are drawn to the
approach historically taken by courts when called upon to interpret the
meaning of constitutional phrases that necessarily embody social
judgments that evolve over time. This approach has allowed courts, for
example, to usher the “cruel and unusual punishment” clause from
generation to generation as views of punishment evolve. See generally
Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958)
3Chiodo was an expedited appeal that traveled through the appellate process
with unprecedented speed. The expedited appeal was necessary to meet the deadline
for printing ballots prior to the pending election. The notice of appeal from the district
court decision was filed on April 2, 2014, and we filed our opinion thirteen days later on
April 15, 2014. During this thirteen-day period, the attorneys prepared and filed briefs,
oral arguments were held, and three opinions were written.
8
(discussing the history and evolution of the Eighth Amendment to the
United States Constitution). The analysis starts with the understanding
that the meanings of these constitutional doctrines are not necessarily
static, and it instead considers current prevailing standards that draw
their “meaning from the evolving standards . . . that mark the progress of
a maturing society.” Id. at 100–01, 78 S. Ct. at 598, 2 L. Ed. 2d at 642.
Thus, the analysis considers the objective indicia of the standards of
society as expressed in legislative enactments and other pronouncements
and those standards gleaned from the text, history, meaning, and
purpose of the constitutional phrase. Graham v. Florida, 560 U.S. 48,
61, 130 S. Ct. 2011, 2022, 176 L. Ed. 2d 825, 837 (2010). Like the cruel
and unusual punishment clause, the concept of infamy is not locked into
a past meaning, but embodies those judgments that reflect its meaning
today. Our founders utilized infamy as a concept to govern the
disqualification of voters and knew it would ultimately be defined by the
prevailing standards of each generation. Community standards exist to
shape these constitutional principles until they evolve into a new
standard or it is determined they are no longer supported by our evolving
knowledge and understanding. This approach reveals the enduring
strength of our constitution.
Accordingly, we follow the constitutional approach we have
followed in other cases of constitutional interpretation to decide the
meaning of an infamous crime today. We begin by looking back to review
the history of infamy to gain a better understanding of the concept as we
apply it in this case.
VI. History of Infamy.
A. Common Law History. The concept of infamy originated in
ancient Greece and Rome. See Mirjan R. Damaska, Adverse Legal
9
Consequences of Conviction and Their Removal: A Comparative Study, 59
J. Crim. L. Criminology & Police Sci. 347, 351 (1968) [hereinafter
Damaska]. It described the loss of various rights of citizenship
associated with the punishment for certain heinous crimes or moral
turpitude. Id. Infamy was a “civic disability, conceived consciously as
based on a moral imperfection.” A.H.J. Greenidge, Infamia: Its Place in
Roman Public and Private Law 13 (Oxford, Clarendon Press 1894).
Different levels of infamy existed, from suspension of voting rights to
testimonial disqualification. Id. at 6. Thus, infamy was a moral censure
pronounced by the government as a result of acts of moral turpitude. Id.
at 18–19, 37.
The concept of infamy was absorbed into the canon law of the
church and from there disseminated into the laws in Europe. See
1 Julius Goebel, Jr., Felony and Misdemeanor: A Study in the History of
English Criminal Procedure 70–73 & nn.17–22 (1937). Indeed, “the
infamy notion be[came], for both church and state, basic to their
schemes of law enforcement, and eventually to the whole structure of
human relationships.” Id. at 73. In some countries during the Middle
Ages, the use of publicly degrading punishments like the pillory resulted
in infamy. Damaska, 59 J. Crim. L. Criminology & Police Sci. at 351. In
France, infamy eventually developed into the loss of civil rights, including
the exclusion from public office, deprivation of the right to vote or be
elected, disqualification from testimonial capacity, disqualification from
acting as guardian or conservator, and prohibition from bearing arms or
serving as a teacher. Id. at 352–53.
By the eighteenth century, English common law recognized two
kinds of infamy—one respecting the mode of punishment and the other
the future credibility of the person. William Eden, Principles of Penal
10
Law ch. 7, § 5, at 61 (3d ed. London, B. White 1772). The law expressed
the notion that “the stamp of ignominy [was] . . . [the] best instrument for
the promotion of morality, and the extirpation of vice.” Id. § 2, at 57.
Infamous punishments included corporal punishments—“affecting the
body and publicly inflicted”—and “degradations from titles of honour,
civil incapacities, brandings, and public exhibitions of the offender”; they
were to be limited to “offences infamous in their nature.” Id. § 3, at 58–
59. The stamp of infamy and accompanying civil incapacity served both
a retributive goal by depriving those who break society’s rules of society’s
privileges and a deterrent goal by the stigmatizing effect of the
humiliation and isolation offenders suffered in small communities.
Howard Itzkowitz & Lauren Oldak, Note, Restoring the Ex-offender’s Right
to Vote: Background and Developments, 11 Am. Crim. L. Rev. 721, 726–
27 (1973).
A person’s position in society depended in part on their character
and individual worth, and a bad character by itself was sufficient to
incapacitate a person’s ability to swear an oath. Diane L. Zimmerman,
Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy
Tort, 68 Cornell L. Rev. 291, 327–28 (1983). Without the ability to swear
an oath, the person could not participate in legal proceedings as a
plaintiff, a witness, or even to clear himself when charged. Id. at 328.
Those deemed infamous suffered civil degradation by losing the rights of
citizenship such as “the right to testify in court, bring civil prosecution,
serve on juries, hold public office, or enlist in the army.” Pippa Holloway,
Living in Infamy: Felon Disfranchisement and the History of American
Citizenship 3–4 (2014) [hereinafter Holloway].
The crimes that fell into the infamous category at common law
were treason, felony, and the crimen falsi. 2 Francis Wharton, A Treatise
11
on the Criminal Law of the United States § 758, at 416 (4th rev. ed.,
Phila., Kay & Bro. 1857) [hereinafter Wharton 1857]. It is helpful to
consider the meaning of each category as developed over time. Treason
today is generally associated with actions taken expressly against the
state by attempting to overthrow the government or aiding its enemies.
See U.S. Const. art. III, § 3, cl. 1; Iowa Const. art. I, § 16; Treason,
Black’s Law Dictionary (10th ed. 2014). However, when English common
law was still developing, two levels of treason were set in a fourteenth
century statute: high treason and petty (or petit) treason. Theodore F.T.
Plucknett, A Concise History of the Common Law 443 (5th ed. 1956)
[hereinafter Plucknett]; see also 4 William Blackstone, Commentaries
*75–76 [hereinafter Blackstone]. The petty treasons related to conspiring
against one’s liege lord, specifically the killing of a husband by his wife, a
master by his servant, or a prelate by his subject. Plucknett, at 443; see
4 Blackstone, at *75. These petty treasons have since been absorbed
into the murder category of felonies and are no longer designated as
treasons. See 1 Whart. 1857 § 1, at 111. High treason included:
plotting the death of the king, queen, or heir; violating the king’s wife, his
oldest unmarried daughter, or his heir’s wife; taking up arms against the
king or aiding his enemies; counterfeiting the great seal; counterfeiting
money; and slaying the chancellor, treasurer, or judges while sitting in
court. 4 Blackstone, at *76–85; Plucknett, at 443. All high treason was
punishable by a torturous death. 4 Blackstone, at *92–93.
At common law, the next level of offense down from treason was
felony. “All treasons, therefore, strictly speaking, are felonies, though all
felonies are not treason.” Id. at *95. In the middle ages, the list of
felonies was short and narrowly defined. Generally, felonies only
included “murder, manslaughter, arson, burglary, robbery, rape,
12
sodomy, mayhem, and larceny.” 1 Whart. 1857, § 2, at 112; see
Plucknett, at 442–51. In English common law, felonies consisted of the
crimes that would be punished by “a total forfeiture of either lands or
goods, or both, . . . and to which capital or other punishment may be
superadded, according to the degree of guilt.” 4 Blackstone, at *95. “In
this country, with a few exceptions, the common law classification has
obtained; the principal felonies being received as they originally existed,
and their number being increased as the exigencies of society prompted.”
1 Whart. 1857, § 2, at 112.
“Just what the scope of the term crimen falsi was seems never to
have been accurately defined . . . .” Ralph R. Wood, Note, Infamy as a
Testimonial Disqualification, 2 Tex. L. Rev. 227, 228 (1924). 4 In the late
seventeenth century, the concept of crimen falsi began to be used to
disqualify witnesses under the theory that the deceit of those convicted
rendered them unable to be trusted to testify truthfully. Stuart P. Green,
Deceit and the Classification of Crimes: Federal Rule of Evidence 609(A)(2)
and the Origins of Crimen Falsi, 90 J. Crim. L. & Criminology 1087, 1106
(2000). 5 In 1857, Wharton defined the disqualifying crimen falsi as those
that both “involve[] the charge of falsehood” and “may injuriously affect
the administration of justice, by the introduction of falsehood and fraud.”
2 Whart. 1857 § 759, at 416. He proceeded to identify “forgery,
perjury, subornation of perjury, suppression of testimony by bribery,
conspiracy to procure the absence of a witness, or conspiracy to accuse
4Wood noted that practically the scope of crimes included in crimen falsi had
been construed as crimes of a felony grade. Wood, 2 Tex. L. Rev. at 228.
5Before the seventeenth century, the crimen falsi were primarily forgery and
counterfeiting, both of which fell within the treason category and were punished as
such, not singled out for punishment based on their deceitful nature. Green, 90 J.
Crim. L. & Criminology at 1104–05.
13
another of crime, and barratry” as the qualifying offenses. Id. (footnotes
omitted). 6
Infamy in the first half of the nineteenth century was understood
in two contexts: infamy of the crime and infamy of the punishment. The
infamy of the crime was considered to destroy the competency of the
person convicted. Francis Wharton, A Treatise on the Criminal Law of the
United States 202 (Phila., James Kay, Jun. & Bro. 1846) [hereinafter
Wharton 1846]. It is this type of infamy that led to voter, witness, and
juror disqualifications. Holloway, at 3–4 (“Infamous individuals
experienced civil ‘degradation’—meaning the loss of the rights of
citizenship.”).
During the early nineteenth century, many states added provisions
to their constitutions excluding persons convicted of infamous crimes
from the right of suffrage. Ohio passed the first infamous-crime
exclusion provision in 1803, giving the legislature “full power to exclude
from the privilege of electing, or being elected, any person convicted of
bribery, perjury, or any other infamous crime.” Ohio Const. of 1803,
art. IV, § 4. Nine other states had added similar restrictions by the time
voters approved the Iowa Constitution of 1846. Ark. Const. of 1836,
art. IV, § 12; Fla. Const. of 1838, art. VI, § 4; Ill. Const. of 1818, art. II,
§ 30; Ind. Const. of 1816, art. VI, § 4; Mo. Const. of 1820, art. III, § 14;
N.Y. Const. of 1821, art. II, § 2; R.I. Const. of 1843, art. II, § 4; Tenn.
Const. of 1835, art. IV, § 2; Va. Const. of 1830, art. III, § 14. 7
6In the 1846 edition of his treatise, Wharton only specified “perjury, forgery, . . .
conspiracy, barratry, and the like” as crimen falsi. Francis Wharton, A Treatise on the
Criminal Law of the United States 201–02 (Phila., James Kay, Jun. & Bro. 1846).
7Otherstates excluded voters based on other variants of criminal conviction.
For example, Connecticut tied electoral privilege forfeiture to conviction of an offense for
which an infamous punishment is inflicted rather than an infamous crime. Conn.
14
“Persons convicted of treason, felony, piracy, præmunire, perjury,
forgery, or any other species of the crimen falsi, such as conspiracy,
barratry, and the like, [we]re inadmissible” as witnesses. Wharton 1846,
at 201–02 (footnotes omitted). Despite this particularized listing, just
eleven years later in a subsequent edition of the same treatise, Wharton
noted, “[I]t is a difficult point to determine precisely the offences which
render the perpetrator of them infamous; the usual and more general
enumeration of them being treason, felony, and the crimen falsi.”
2 Whart. 1857 § 758, at 416. Wharton’s definitions are particularly
persuasive of the conception of infamous crime at the time of our
constitution because the two editions cited here were published the same
years as Iowa voters ratified the two versions of the Iowa Constitution.
Overall, the common law reveals that as the concept of democratic
governing began to emerge, the concept of infamy took firm hold as a
standard utilized to disqualify people from engaging in various civic
functions, including voting. Overall, it is fair to conclude the concept of
infamous crimes was commonly associated with felony crimes.
B. Iowa History. We next review the history of the concept of
infamy in Iowa. We begin with our constitution and then separately
consider its history in each branch of government.
1. Constitutional history. The common law concept of disqualifying
a person from voting based on the conviction of an infamous crime
_________________________
Const. of 1818, art. VI, § 3. New Jersey excluded those convicted of crimes that result
in the loss of the ability to act as a witness, essentially an infamous-crime provision.
N.J. Const. of 1844, art. II, § 1. The term “high crimes and misdemeanors” also
appeared in disqualification provisions. See, e.g., Ala. Const. of 1819, art. VI, § 5; Ky.
Const. of 1799, art. VI, § 4; La. Const. of 1812, art. VI, § 4.
15
emerged in Iowa as a part of our first constitution in 1846. 8 The
provision was then included in our revised constitution in 1857. As
originally enacted, article II, section 5 provided “no idiot, or insane
person, or person convicted of any infamous crime, shall be entitled to
the privilege of an elector.” Iowa Const. art. II, § 5 (repealed 2008). This
language remained intact for the next 151 years. In 2008, the section
was amended to “remove[] the words ‘idiot’ and ‘insane’ from the
constitutional provision and substitute[] the phrase ‘mentally
incompetent to vote.’ ” See Legislative Servs. Agency, 2007 Summary of
Legislation, H.J.R. 3—Proposed Constitutional Amendment—
Qualification of Electors (Iowa 2007), https://www.legis.iowa.gov/docs/
publications/SOL/401775.pdf. Thus, today, article II, section 5 provides
that “a person adjudicated mentally incompetent to vote or a person
convicted of any infamous crime shall not be entitled to the privilege of
an elector.” Iowa Const. art. II, § 5 (ratified 2008).
2. Legislative history. Our early territorial laws specifically
identified crimes deemed to be infamous. See The Statute Laws of the
Territory of Iowa, Code of Criminal Jurisprudence, § 109, at 182 (1839)
[hereinafter 1839 Statute Laws]. This classification was primarily found
in a statute that included crimes such as rape, kidnapping, perjury,
arson, burglary, robbery, sodomy, the crime against nature, larceny,
forgery, counterfeiting, and bigamy, but did not mention other statutory
crimes such as manslaughter, mayhem, assault, false imprisonment,
bribery, and fraudulent misrepresentation. Compare id., with id. Code of
8A different version of the clause was originally proposed, disqualifying “persons
declared infamous by act of the legislature.” Iowa Const. of 1844, art. III, § 5. This
provision would be functional as long as the legislature deemed people infamous based
on criminal convictions, as done in the 1839 territorial statute. See The Statute Laws of
the Territory of Iowa, Code of Criminal Jurisprudence, § 109, at 182 (1839).
16
Criminal Procedure § 92, at 126 (defining felony), and id. Code of
Criminal Jurisprudence §§ 1–96, at 150–70 (describing various crimes
and punishments). Crimes punishable by death—such as murder—were
also not included, presumably because the sentence eliminated the need
to impose any disqualifications.
While this early legislative history reveals the concept of infamy
was swiftly introduced into the culture of Iowa with clarity, the law was
short-lived. The infamous-crime statute retreated into legislative
obscurity almost as quickly as it surfaced. The territorial legislature
repealed the statute in 1843 and did not redefine infamy in a new
statute. See Revised Statutes of the Territory of Iowa ch. 49, class 2,
§ 48, at 137 (1843). 9 The concept then essentially lay dormant in the
legislative branch of government for over a century and a half, despite its
continued prominent presence as a constitutional restriction on voting.
During these nearly eight generations of Iowa life, the public attitudes
about crime shifted and many new crimes were identified and introduced
into our criminal code. See, e.g., Iowa Code § 124.401 (2013) (controlled
substances); id. § 321J.2 (operating while intoxicated); id. ch. 708A
(terrorism); id. § 710A.2 (human trafficking); id. § 715A.8 (identity theft).
Compare Iowa Code §§ 914–919, 1019–1027 (1919) (prohibiting sale,
9Instead, the legislature divided crimes into two classes. One class essentially
included crimes punishable by incarceration in the penitentiary, and the other class
included crimes punishable by fine or incarceration in the county jail. Revised Statutes
of the Territory of Iowa ch. 49, §§ 1–75, at 119–30; id. ch. 49, class 2, §§ 1–39, at 131–
36. It then declared persons convicted of crimes punishable by imprisonment in the
penitentiary “to be deemed incompetent to be an elector, juror, or witness” or hold
public office. Id. ch. 49, § 79, at 131. This approach, however, was effectively
preempted by the adoption of the constitution in 1846. Further, in 1849, the
legislature adopted an elector-qualifications statute specifying an infamous-crimes
conviction disqualified an elector. 1849 Iowa Acts ch. 105, § 1. Yet no elector-
qualifications provision was incorporated into the 1851 Iowa Code. See Iowa Code
§§ 244–261, at 33–35 (1851).
17
manufacture, possession, transportation, and advertising of liquor, beer,
and wine and increasing associated penalties), with Iowa Code §§ 1921-
f18 to -f37 (1935) (establishing state-run liquor stores and permit
systems). Yet through all the years and shifts in our criminal law, the
concept of infamy and its disqualification of voters largely remained
dormant.
Then, in 1993, Congress passed the National Voter Registration
Act of 1993. 52 U.S.C. §§ 20501–20511 (2012). The purpose of the Act
was to establish procedures to increase the number of registered voters,
enhance voter participation in elections, “protect the integrity of the
electoral process,” and to ensure current and accurate voter registration
lists. Id. § 20501. Among the provisions to expand voter registration,
the Act established requirements for state voter registration rolls. Id.
§ 20507. Among those requirements was a provision that allowed states
to remove the name of a registrant from the list of eligible voters “as
provided by State law, by reason of criminal conviction or mental
incapacity.” Id. § 20507(a)(3)(B). This law awoke our legislature to take
action to define those criminal convictions that would make a person
ineligible to vote.
During the next session of the General Assembly, the Iowa
legislature passed an act to implement the National Voter Registration
Act. 1994 Iowa Acts ch. 1169 (codified in scattered sections of Iowa Code
(1995)). This implementation act disqualified persons convicted of a
felony as defined under Iowa Code section 701.7 or a federal felony. Id.
§ 7 (codified at Iowa Code § 48A.6). It also provided for the removal of
voters from the registration list by requiring the court to send notice of
18
convictions to the state registrar of voters. Id. § 31 (codified at Iowa Code
§ 48A.30(1)(d)). 10
The legislature passed a second election law act around the same
time with more election and registration laws as well as corrective and
technical changes to Iowa’s election laws. 1994 Iowa Acts ch. 1180
(codified in scattered sections of Iowa Code). The first provision of this
act defined an infamous crime as a felony under section 701.7 or a
federal felony, thereby bringing section 48A.6 disqualifications in
compliance with the language of article II, section 5 of the Iowa
Constitution. Id. § 1 (now codified at Iowa Code § 39.3(8) (2013)). The
statute meant that convicted felons in Iowa were disqualified from voting.
This law enacted by our legislature remains our law today.
3. Judicial history. Our court has not had many opportunities to
shape the meaning of infamy over the years in the context of voter
disqualification. We first discussed the concept of infamous crimes in
1848, two years after we became a state. See Carter v. Cavenaugh, 1
Greene 171, 176 (Iowa 1848). However, we did so only in the course of
deciding the proper method to impeach a witness who testified at trial.
See id. at 176–77. In Carter, we limited impeachment testimony of a
witness to general reputation, not specific crimes. Id. at 179. In doing
so, we observed the history of disqualifying a witness from testifying. Id.
at 176–77. We recognized infamous crimes that render a witness
incompetent to testify were “the heinous crimes classed as treason,
felony, and the crimen falsi as understood at common law.” Id. at 176.
We also observed infamous crimes were crimes of moral depravity that
10A similar provision had previously been in place, canceling the registration of a
qualified elector when the clerk of court sent notice of conviction of a felony. Iowa Code
§ 48.31(4) (1993).
19
rendered the person incompetent to participate in many aspects of
government until pardoned. Id.
Over fifty years passed before we again addressed the concept of
infamy, but it was once more in the context of the testimony of a witness
at trial. In 1901, we noted,
[T]here has been great difficulty among judges and text
writers in stating any satisfactory rule for determining
definitely what are the crimes conviction of which
disqualifies a witness from testifying. Without controversy,
conviction for treason or felony will disqualify, but as to
other crimes it has been said that they must be in their
nature infamous; and this has been interpreted to include
only those crimes involving the element of falsifying, such as
perjury or forgery, or other crimes which tend to the
perversion of justice in the courts.
Palmer v. Cedar Rapids & Marion Ry., 113 Iowa 442, 446, 85 N.W. 756,
757 (1901).
We next considered the concept of infamy in 1916. In Flannagan
v. Jepson, 177 Iowa 393, 399–401, 158 N.W. 641, 643–44 (1916), we
examined Ex parte Wilson, 114 U.S. 417, 429, 5 S. Ct. 935, 941, 29
L. Ed. 89, 93 (1885) (determining that for purposes of the Fifth
Amendment, a crime punishable by an infamous punishment like hard
labor in a penitentiary is an infamous crime 11), to determine whether an
infamous punishment could be imposed for contempt and ultimately
decided that imposition of an infamous punishment requires conviction
of a charge triable by jury. However, we inadvertently removed the
limiting clause “within the meaning of the [F]ifth [A]mendment” from the
11The Wilson Court expressly distinguished between “crimes subject to any
infamous punishment” and “crimes infamous in their nature, independently of the
punishment affixed to them,” though it allowed that the crimes subject to capital or
infamous punishment could also include crimes infamous in nature. Wilson, 114 U.S.
at 422-24, 5 S. Ct. at 937–38, 29 L. Ed. at 91.
20
Wilson definition of infamous crime and followed the Supreme Court’s
pronouncement that infamous crime referred to crimes punishable by
imprisonment in a penitentiary. Compare Flannagan, 177 Iowa at 400,
158 N.W. at 643, with Wilson, 114 U.S. at 429, 5 S. Ct. at 941, 29 L. Ed.
at 93. This move significantly impacted our development of the concept
as applied to voter disqualification in the next infamous-crime case we
decided.
In the same year we decided Flannagan, we were also presented
with a case for the first time that addressed the concept of infamous
crimes in the context of qualified electors. In Blodgett v. Clarke, 177
Iowa 575, 578, 159 N.W. 243, 244 (1916) (per curiam), overruled by
Chiodo, 846 N.W.2d at 852, we were required to decide if forgery was an
infamous crime that would disqualify an elector from running for public
office. We found ourselves squarely confronted with the meaning of
infamous crime under article II, section 5 of our constitution and its
application to disqualify an elector. Id. In considering the question on
the heels of Flannagan, we wasted no time in holding that an infamous
crime was any crime punishable by imprisonment in the penitentiary.
Id. Our pronouncement closely aligned with the approach taken in
Wilson. See id.; Flannagan, 177 Iowa at 400, 158 N.W. at 643. We
engaged in no independent analysis and effectively made felonies and
infamous crimes synonymous under Iowa law. See Iowa Code § 5093
(1897) (defining felony as “a public offense . . . punish[able] by
imprisonment in the penitentiary”).
We returned to consider the concept of infamy in the context of
witness disqualification in State v. Voelpel, 208 Iowa 1049, 1050, 226
N.W. 770, 771 (1929). In that case, we distinguished between infamous
crimes, crimes of moral turpitude, and felonies:
21
We are not confronted with the question of whether the
previous conviction of a witness must be of “an infamous
crime,” or one “involving moral turpitude.” By statute the
proof may be only of “previous conviction for a felony.” This
is one of the methods of impeachment of a witness. It may
be true that in ancient times, and under the common law, a
witness who had been previously convicted of an “infamous
crime” was not permitted to testify at all. However, the law
is now more logical and rational in this regard.
Id. at 1051, 226 N.W. at 771. Although this language strongly implied a
distinction between infamous crime and felony, the nature of that
distinction remained unsaid, with the distinction between a witness’s
disqualification from testifying and the impeachment of the witness
instead taking center stage. 12 See id.
In 1957, we addressed the concept of infamy in State ex rel. Dean
v. Haubrich, 248 Iowa 978, 980, 83 N.W.2d 451, 452 (1957). Yet we did
not forge any new ground from the path taken in Blodgett. See id.
Rather, we focused on whether a person convicted of an infamous crime
could become eligible for elected office by the governor restoring state
citizenship rights. Id. at 985–86, 83 N.W.2d at 455. As in Blodgett, we
engaged in no independent analysis of the meaning of infamous crime.
Then, just two years ago, we were required to consider the concept
of infamous crimes in the same context we did in Blodgett almost a
12In some cases, we have specifically noted crimes as infamous in nature. See
State v. Pilcher, 242 N.W.2d 367, 368–69 (Iowa 1976) (sodomy); State v. Gruver, 260
Iowa 131, 134, 148 N.W.2d 405, 407 (1967) (forgery); Kotek v. Bennett, 255 Iowa 984,
988, 124 N.W.2d 710, 712 (1963) (first-degree murder, under a Fifth Amendment
challenge); State ex rel. Dean v. Haubrich, 248 Iowa 978, 979–80, 83 N.W.2d 451, 452
(1957) (federal tax evasion); Blodgett, 177 Iowa at 578, 159 N.W. at 244 (forgery); State
v. Kingsley, 39 Iowa 439, 441 (1874) (seduction). However, in each of these cases, the
crime was simply noted as an infamous crime, not evaluated to determine whether or
why it should be considered infamous. Finally, in State v. Cullison, 173 N.W.2d 533,
537 (Iowa 1970), we noted the felon had constitutionally lost his right to vote and hold
public office as a result of his felony conviction but did not include which felony he was
convicted of that resulted in the loss of the right.
22
century earlier. Chiodo, 846 N.W.2d at 848. In Chiodo, as in Blodgett,
we were asked to determine if a criminal conviction disqualified a person
under the voting provision of our constitution from running for public
office. Id. at 848–49. However, unlike the felony level crime of forgery in
Blodgett, the crime involved in Chiodo was the aggravated misdemeanor
of operating while intoxicated, second offense. Id. at 849; Blodgett, 177
Iowa at 578, 159 N.W. at 244.
For the first time, we engaged in a comprehensive review of our law
on infamous crime. See Chiodo, 846 N.W.2d at 848–56. In doing so, we
discovered that our prior cases never engaged in a textual analysis of the
meaning of infamous crime in article II, section 5 of our constitution.
See id. at 849–51. The plurality opinion rejected the Blodgett standard
that broadly defined infamous crimes as any crime punishable by
imprisonment in the state penitentiary. Id. at 852. It also rejected the
notion of infamy as a criminal punishment and concluded that our
founders viewed the concept more as a regulatory measure intended to
“preserve the integrity of the process of voting” and to protect the process
from those “infected by an infamous disposition.” Id. at 855. Although
we identified various tests used in other states to determine if a crime
was infamous—affront to democratic governance, the common law
definition, or crimes of great moral turpitude—we declined to adopt any
of them at that time. Id. at 856. Instead, we only utilized two criteria:
the crime “must be classified as particularly serious” and “must . . .
reveal[] that voters who commit the crime would tend to undermine the
process of democratic governance through elections.” Id. We held that
to meet the first criterion, a particularly serious nature, the crime must
be a felony, not a misdemeanor. Id. at 856–57.
 23
4. Executive history. With the absence of a statute governing the
disqualification of voters for convictions of infamous crimes in almost all
but the last two decades of our statehood, little history of executive
branch enforcement of the constitutional provision governing voter
disqualification exists in Iowa. Yet cases like Blodgett and Haubrich
would not have made it to our court if the executive branch had not been
implementing the disqualification of otherwise eligible electors convicted
of committing infamous crimes. Moreover, Haubrich provides evidence
that governors over the years have used the pardoning power to restore
elective rights to convicted persons. See 248 Iowa at 985–86, 83 N.W.2d
at 455–56. Overall, the restoration of voting rights of convicted felons
who have completed their sentences provides the most significant history
of executive branch action, particularly in recent times.
The last decade has revealed two different approaches by the
executive branch to the restoration of voting rights through the exercise
of the power to pardon. On July 4, 2005, Governor Thomas J. Vilsack
signed Executive Order No. 42. Exec. Order No. 42 (2005),
http://publications.iowa.gov/3762/1/EO_42.pdf. This order restored
the citizenship rights—including voting rights and eligibility for public
office—for “all offenders that are completely discharged from criminal
sentence, including any accompanying term of probation, parole, or
supervised release.” Id. It further provided that eligible offenders would
automatically be reviewed to determine whether to restore their rights
when their sentences were discharged. Id. The order was rescinded on
January 14, 2011, by Governor Terry E. Branstad. Exec. Order No. 70
(2011), http://publications.iowa.gov/10194/1/BranstadEO70.pdf. Cur-
rently, offenders who have discharged their sentences are required to go
through an application process before their voting rights may be
24
restored. Id. Each application is then considered on a case-by-case
basis by the governor’s office.
In addition to an executive branch history of restoring voting rights
through the exercise of the power to pardon, the history of the executive
branch also includes opinions from the office of the Iowa Attorney
General discussing infamous crimes, disqualification, and the restoration
of rights. An early opinion concluded that the restoration of rights was
incident to the governor’s constitutional power to pardon and that a
restoration could not happen without the right to pardon. Op. Iowa Att’y
Gen. (Nov. 17, 1898), 1898 WL 37740, at *1. In 1912, an advisory
opinion written to then-Governor B.F. Carroll noted that the
disqualification provision was not limited to state convictions and that an
infamous crime in state or federal court fell within the scope of article II,
section 5 of the Iowa Constitution. Op. Iowa Att’y Gen. (Oct. 16, 1912),
1912 WL 49029, at *1 (opining the governor had the right to restore state
citizenship rights regardless of jurisdiction of conviction). A 1924
opinion stated that a convict (other than one guilty of treason or in a
case of impeachment) that had discharged his sentence and received a
certificate of restoration “is restored to the same position in which he was
before his conviction and is therefore, restored to the privileges of an
elector.” Op. Iowa Att’y Gen. (Mar. 8, 1924), 1924 WL 60500, at *2. In
1936, the attorney general’s office expressly linked the restoration to a
pardon and noted that the rights of citizenship cannot be enjoyed
following a conviction “until and unless” a restoration is granted. Op.
Iowa Att’y Gen. (Apr. 13, 1936), 1936 WL 68639, at *2.
In 1957, the attorney general concluded the governor was “the sole
judge as to what conditions must be met before such restoration may be
procured” and that the power to restore rights rested exclusively in the
25
Office of the Governor. Op. Iowa Att’y Gen. (May 20, 1957), 1957 WL
93124, at *1. In 1964, the attorney general informed the governor that
his power to restore Iowa citizenship rights extended to those convicted
in other states, unless they had already been pardoned in that other
state. Op. Iowa Att’y Gen. (June 9, 1964), 1964 WL 121187, at *2.
The legislature consulted with the attorney general in 1976 when
amending the election-related criminal penalties. See Op. Iowa Att’y
Gen. No. 76-3-7 (Mar. 11, 1976), 1976 WL 375888, at *1. First, the
attorney general found that under the then-current Iowa court
precedent, aggravated and serious misdemeanors would fall within the
category of infamous crimes based on the penitentiary punishment
proposed. Id. at *2. Second, the attorney general concluded that a
statutory provision restoring elective rights following discharge would
both violate the elector requirements of article II, section 5 of the Iowa
Constitution and infringe on the pardoning powers of the executive
branch. Id. at *3–4. This was the approach followed by the dissenting
opinion in Chiodo. See 846 N.W.2d at 863–65 (Wiggins, J., dissenting).
The final useful guidance from the attorney general’s office was
directed to the Iowa Voter Registration Commission in 1985 regarding
the application of statutes implementing article II, section 5 of the Iowa
Constitution. Op. Iowa Att’y Gen. No. 85-6-7(L) (June 19, 1985), 1985
WL 549204, at *1. The opinion observed that the courts had not fully
considered the term “infamous crime” since 1916 in Flannagan. Id. at
*3. It found the year-or-more-confinement formulation of the term stated
in Flannagan and Haubrich to be problematic, questioning whether that
formulation would withstand judicial review, but concluded that the
executive branch was bound to it. Id. at *3–4.
 26
As a whole, the history of the executive branch of government
provides more insight into the debate over the restoration of voting rights
than the debate over what crimes should result in the loss of voting
rights. However, the debate over the restoration of rights after
completing the sentence is separate and distinct from the debate over the
types of crime that should be considered infamous and does not
influence the meaning of infamy.
C. Application of Infamy in Contexts Other Than Voting. This
historical background serves not as the end, but as the beginning point
in our analysis. One author explains that those convicted of infamous
crimes have breached the civic trust and that regaining the right to vote
serves as the relevant currency signaling the breaching party once again
meets the standards of society and has been restored to that civic trust.
Mary Sigler, Defensible Disenfranchisement, 99 Iowa L. Rev. 1725, 1728,
1736–38 (2014). This concept relates to social-contract theories that
suffrage protects citizens from misrule and requires them to not harm
each other. See id. at 1736–38 (examining the topic of “civic trust” and
its application to the electoral process); see also Alec C. Ewald, “Civil
Death”: The Ideological Paradox of Criminal Disenfranchisement Law in
the United States, 2002 Wis. L. Rev. 1045, 1073–78 (examining the
relation of principles from John Locke, Thomas Paine, and Alexis
de Tocqueville to American attitudes toward criminals). Under this
theory, those who harm others or society through criminal action would
exercise the right to vote in a way to harm society. Although society
believes in the rehabilitation of offenders and attitudes toward those who
have discharged their sentences have evolved considerably, we must
determine societal attitudes toward those still under sentence as well as
those with completed sentences. Attitudes might be changing to
27
recognize that those convicted of infamous crimes can be trustworthy
and valuable electors, but the premise of at least some disqualification
based on conviction still appears to have general acceptance throughout
the country. 13
As mentioned above, under English common law, those convicted
of infamous crimes were barred from testifying because they were
considered incompetent. 3 Blackstone, at *370 (“Infamous persons are
such as may be challenged as jurors, propter delictum (on account of
incompetency) and therefore never shall be admitted to give evidence to
inform that jury, with whom they were too scandalous to associate.”).
The nature of the crime, not the potential for infliction of an infamous
punishment, provided the ground for incompetency. 2 William Oldnall
Russell, A Treatise on Crimes and Indictable Misdemeanors 593 (Theron
Metcalf ed., 2d Am. ed., Phila., P.H. Nicklin & T. Johnson 1831). This
practice of disqualifying those convicted of infamous crimes from
testifying in court was already changing by the time our constitution was
ratified. See George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J.
575, 656–71 (1997) (tracing the fall of competency rules governing felon
testimony in civil and criminal cases).
As early as 1848, our court expressed doubt of the link between
truthfulness and character as applied to witness testimony. See Carter,
1 Greene at 176–77. By 1851, our statutes allowed “[f]acts which have
heretofore caused the exclusion of testimony” to be admitted to lessen
credibility, but the testimony of those convicted of felonies was
13Only two states, Maine and Vermont, do not impose any voting restrictions or
disenfranchise voters for criminal conviction. See Criminal Disenfranchisement Laws
Across the United States, Brennan Ctr. for Justice (May 31, 2016),
http://www.brennancenter.org/sites/default/files/publications/Criminal_Disenfranchi
sement_Map.pdf.
28
permitted. Iowa Code §§ 2389, 2398 (1851). In 1892, the Supreme
Court observed that barriers excluding witnesses had been falling:
[I]t is generally, though perhaps not universally, true that no
one is excluded [from testifying] unless the lips of the
originally adverse party are closed by death, or unless some
one of those peculiarly confidential relations, like that of
husband and wife, forbids the breaking of silence.
Benson v. United States, 146 U.S. 325, 337, 13 S. Ct. 60, 64, 36 L. Ed.
991, 996 (1892). This movement continued and was reinforced by the
Court in 1918, “leaving the credit and weight of such testimony to be
determined by the jury or by the court, rather than by rejecting
witnesses as incompetent.” Rosen v. United States, 245 U.S. 467, 471,
38 S. Ct. 148, 150, 62 L. Ed. 406, 409 (1918). The Rosen Court noted
the extension reached those convicted of perjury, even though perjury
reflected “a greater disregard for the truth than it was thought should be
implied from a conviction of other crime.” Id.
Today the federal and state rules of evidence allow impeachment of
a witness for conviction of a crime punishable by death or imprisonment
of a year or more or for conviction of a crime involving dishonesty or false
statement; the rules do not disqualify witnesses from testimony based on
any crimes. Fed. R. Evid. 609(a); Iowa R. Evid. 5.609(a). While the
admissibility of most convictions for impeachment purposes is subject to
a rule 5.403 balancing of the probative nature of the conviction versus its
prejudicial value, crimes involving dishonesty and false statement—i.e.
the crimen falsi—are not subject to discretionary exclusion. State v.
Harrington, 800 N.W.2d 46, 49–51 (Iowa 2011). However, the rule places
a time limit on either form of impeachment: ten years from the later of
the date of conviction or the date of release from confinement. Fed. R.
Evid. 609(b); Iowa R. Evid. 5.609(b).
29
Conviction of an infamous crime disqualified a person from serving
as a juror for considerably longer than the testimonial disqualification.
In 1851, only qualified electors “of good moral character [and] sound
judgment” could be competent jurors. Iowa Code § 1630. As article II,
section 5 of the Iowa Constitution expressly excepted those convicted of
infamous crimes from being an elector, the statute had the effect of
disqualifying every person convicted of an infamous crime from jury
service. This “qualified elector” requirement remained the law in Iowa
until 1984. 1984 Iowa Acts ch. 1181, § 2 (repealing Iowa Code § 607.1
(1983) (juror qualifications)). The replacement qualifications no longer
required status as a qualified elector and did not otherwise disqualify a
person from jury service based on a conviction. See id. § 3 (codified at
Iowa Code § 607.2 (1985)). Jury lists were no longer a selection of
eligible electors derived from lists of registered voters or drivers’ license
holders, but instead became a selection of those qualified for service
taken from a combined list of voters, drivers’ license holders, and public
utility customers. Compare Iowa Code § 609.5 (1983), with Iowa Code
§ 609.5 (1985).
The court ceased invalidating verdicts from juries that included a
disqualified juror much earlier in time than the jury service
disqualification ended. In 1860, we held that a defendant waives any
objection to a juror’s bias or prejudice when the jury is accepted at the
beginning of trial, but objections to any disqualified persons sitting as
jurors are not waived and provide the defendant a right to a new trial.
State v. Groome, 10 Iowa 308, 316 (1860) (“We think it is the duty of the
State to place twelve legal jurors in the box, and that it is not the duty of
defendant to inquire whether the jurors are qualified or not.”), overruled
30
in part by State v. Pickett, 103 Iowa 714, 720, 73 N.W. 346, 347 (1897).
This idea was expressly overruled in 1897, when we held,
There is no reason why every party to an action, civil or
criminal, should not be held to exercise the right given him
to examine as to the qualifications of jurors called to act in
his case, and, if he waives that right, to be concluded
thereby, unless actual prejudice is otherwise shown.
Pickett, 103 Iowa at 720, 73 N.W. at 347. Thus, both parties would bear
the burden of ensuring the jurors were competent to sit on the jury, and
a juror incompetent due to a conviction would no longer invalidate a
verdict without the defendant showing that juror’s presence had
prejudiced the verdict. Id. Unlike with testimony impeachment,
however, some states continue to disqualify jurors based on conviction of
infamous crime. See, e.g., Miss. Code Ann. § 13–5–1 (West, Westlaw
through 2016 Reg. Sess. effective through May 17, 2016) (“Every citizen
. . . who . . . has not been convicted of an infamous crime . . . is a
competent juror.”).
Overall, we left the concept of infamy behind in the context of
disqualifying a witness from testifying. 14 More recently, we ceased to use
it to disqualify jurors. Yet these divergent paths did not change the
14Significantly, the 1846 Constitution had provided only that “no person shall
be . . . rendered incompetent to give evidence in any court of law or equity, in
consequence of his opinions on the subject of religion.” Iowa Const. of 1846, art. II, § 3.
In 1857, the following language was added: “[A]nd any party to any judicial proceeding
shall have the right to use as a witness, or take the testimony of, any other person not
disqualified on account of interest, who may be cognizant of any fact material to the
case . . . .” Iowa Const. art. I, § 4. Thus, “interest” seemingly became the only basis for
disqualifying a witness.
In fact, the delegates to the 1857 convention voted down an amendment that
would have authorized “persons convicted of infamous crimes” to be prevented from
testifying. 1 The Debates of the Constitutional Convention of the State of Iowa 180
(W. Blair Lord rep., 1857), www.statelibraryofiowa.org/services/collections/law-
library/iacon/iadeb/condebs. But at the same time, our framers retained the language
disqualifying persons convicted of infamous crimes from voting.
31
definition of infamous crime in the context of voter disqualification, and
they do not undermine our analytical model of relying on community
standards of today to define an infamous crime. Prevailing community
standards remain important in defining infamous crimes, whether those
standards might serve to exclude some felony crimes from the definition
or include all felony crimes. Community standards are properly used to
define constitutional doctrine unless constitutional facts exist that reveal
the standards are contrary to the intent and purpose of the
constitutional doctrine.
VII. Application.
As we strive today to identify a standard of infamy, it is clear our
history reveals the infamous crime disqualification from voting was
introduced to Iowa as a concept aligned with the common law notion of
infamy. This common law approach generally identified infamous crimes
as felonies. See Carter, 1 Greene at 176. Yet the concept of infamy was
not carried forward with a specific or strict definition, but rather as a
general principle dependent on time for its development. This is what
history has shown has been taking place from the time the concept of
infamy originated. The difficulty today is that the three branches of
government, and therefore the State of Iowa, have done little to advance
the concept.
Our territorial legislature briefly expressed—and quickly
withdrew—the view that infamous crimes included many, but not all,
crimes that today would be described as felonies. See 1839 Statute Laws
§ 109, at 182; Revised Statutes of the Territory of Iowa ch. 49, class 2,
§ 48, at 137. Then, in 1994, our legislature took the concrete step to
expound a bright-line standard that infamous crime embraces all
32
felonies. 1994 Iowa Acts ch. 1180, § 1 (now codified at Iowa Code
§ 39.3(8) (2013)).
Under our analytical model, these legislative pronouncements are
important considerations for us today. Statutes do not serve as
constitutional definitions but provide us the most reliable indicator of
community standards to gauge the evolving views of society important to
our analysis. State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009); see
Chiodo, 846 N.W.2d at 853–54 (plurality opinion). These views are
particularly invaluable in interpreting the infamous-crime clause in Iowa.
See Chiodo, 846 N.W.2d at 854.
The judgment expressed by the legislature in 1994 has additional
importance in this case in light of the absence of other legislative or
judicial expressions in our state’s history. For sure, the legislative view
of infamy has indirectly modified over time as various statutes on crime
expanded and contracted, but only slightly. For example, sodomy was
declared by our territorial legislature to be among the infamous crimes in
1839, and it remained a crime well into the twentieth century. Iowa
Code ch. 705 (1977); 1839 Statute Laws § 109, at 182. Today, it is no
longer a crime—the criminal provision was repealed in 1978. See 1976
Iowa Acts ch. 1245, ch. 4, §§ 526, 529. Bigamy was also declared an
infamous crime in 1839. 1839 Statute Laws § 83, at 173–74; id. § 109,
at 182. It was punishable by imprisonment in the penitentiary, and this
harsh punishment continued well into the twentieth century. Id. § 83, at
174; Iowa Code § 703.1 (1977). Today, it is only considered a serious
misdemeanor. Iowa Code § 726.2 (2013). Thus, the scope of infamy
associated with criminal acts has evolved as our view of criminal
culpability evolved. Yet these modest changes to our view of crime over
time did not knock the concept of infamy out of line with the concept of
33
felony. To the contrary, infamy remained remarkably consistent with its
historic connection to felonies over the passage of time.
Moreover, the definition is not out of line with the national view of
infamy in the context of voter disqualification. Certainly, no national
consensus has developed to define infamous crime either more broadly
or more narrowly than our legislature. As we recognized in Chiodo, many
states across the nation have included provisions in their constitutions
to deny people the right to vote when convicted of an infamous crime.15
846 N.W.2d at 855. Regarding those states, we observed,
Some courts have settled on a standard that defines
an “infamous crime” as an “affront to democratic governance
or the public administration of justice such that there is a
reasonable probability that a person convicted of such a
crime poses a threat to the integrity of elections.” Other
courts limit the definition to a “felony, a crimen falsi offense,
or a like offense involving the charge of falsehood that affects
the public administration of justice.” Still other courts
establish the standard at crimes marked by “great moral
turpitude.”
Id. at 856 (citations omitted) (first quoting Snyder v. King, 958 N.E.2d
764, 782 (Ind. 2011); then quoting Commonwealth ex rel. Baldwin v.
Richard, 751 A.2d 647, 653 (Pa. 2000); and then quoting Washington v.
State, 75 Ala. 582, 585 (1884)).
Some states define infamous crimes using an itemized list of
crimes, some have adopted versions of the common law definition, some
limit the definition to felonies—either specific offenses or all felonies—
and some define it based on the punishment inflicted. See, e.g., Ark.
Code Ann. § 7-1-101(17) (West, Westlaw through 3d Extraordinary Sess.,
15The other states that still have suffrage infamous-crimes clauses in their
constitutions are Indiana, Maryland, New Mexico, New York, Tennessee, and
Washington. Ind. Const. art. II, § 8; Md. Const. art. I, § 4; N.M. Const. art. VII, § 1; N.Y.
Const. art. II, § 3; Tenn. Const. art. IV, § 2; Wash. Const. art. VI, § 3.
34
90th Ark. Gen. Assemb. in effect May 23, 2016) (felony, misdemeanor
theft or fraudulent/deceitful act, abuse of office, tampering); Miss. Code
Ann. § 1-3-19 (offenses punishable by death or confinement in
penitentiary); Tenn. Code Ann. § 40-20-112 (West, Westlaw through the
2016 2d Reg. Sess. effective through Mar. 24, 2016) (any felony with
infamous adjudication); In re Request of Governor for Advisory Opinion,
950 A.2d 651, 653 (Del. 2008) (“[T]he totality of the circumstances in
each case must be examined before a determination may be made that a
specific felony is infamous.” (quoting State ex rel. Wier v. Peterson, 369
A.2d 1076, 1079 (Del. 1976))); Cure v. State, 26 A.3d 899, 913 (Md. 2011)
(“Infamous crimes include treason, common law felonies, and other
offenses classified generally as crimen falsi.” (quoting State v. Westpoint,
947 A.2d 519, 532 (Md. 2008))).
Additionally, when a state constitutional provision relating to
voting or the holding of public office uses the term “infamous crime,” it
has usually been interpreted to include all felonies. See Washington, 75
Ala. at 585 (“The presumption is, that one rendered infamous by
conviction of felony, or other base offense indicative of great moral
turpitude, is unfit to exercise the privilege of suffrage, or to hold
office . . . .”); State v. Oldner, 206 S.W.3d 818, 821 (Ark. 2005) (holding
“Arkansas courts have consistently recognized that a person convicted of
a felony or one of the specifically enumerated offenses is disqualified
from holding public office” under a provision of the Arkansas
Constitution that applies to persons convicted of “embezzlement of public
money, bribery, forgery, or other infamous crime” (quoting Ark. Const.
art. V, § 9)); People ex rel. Keenan v. McGuane, 150 N.E.2d 168, 176 (Ill.
1958) (“Accordingly, we conclude that any public officer convicted, in the
Federal court or in the court of any sister State, of a felony which falls
35
within the general classification of being inconsistent with commonly
accepted principles of honesty and decency, or which involves moral
turpitude, stands convicted of an infamous crime under the common law
as interpreted when our constitution was adopted in 1870, and that such
conviction creates a vacancy in such office.”); State v. Bixler, 62 Md. 354,
360 (1884) (“The Constitution in providing for exclusion from suffrage of
persons whose character was too bad to be permitted to vote, could only
have intended, by the language used, such crimes as were ‘infamous’ at
common law, and are described as such in common law authorities. . . .
It must be a felony . . . or that which is infamous though it be not a
felony.”); Mauney v. State ex rel. Moore, 707 So. 2d 1093, 1095 (Miss.
1998) (adopting the statutory definition of infamous crime as the
constitutional definition for disqualification from public office and
declaring that “ ‘infamous crime’ includes all felonies”); Barker v. People,
20 Johns. 457, 460 (N.Y. Sup. Ct. 1823) (“The law has settled what
crimes are infamous; they are treason, felony, and every species of the
crimen falsi, such as perjury, conspiracy and barratry.”); Briggs v. Bd. of
Cty. Comm’rs, 217 P.2d 827, 829 (Okla. 1950) (“It is correctly conceded
that a felony under the laws of this State is an infamous crime.”);
Baldwin, 751 A.2d at 653 (“[W]e reaffirm that a crime is infamous . . . if
its underlying facts establish a felony, a crimen falsi offense, or a like
offense involving the charge of falsehood that affects the public
administration of justice.”); State v. Collins, 124 P. 903, 904–05 (Wash.
1912) (finding that when the defendant was convicted of “breaking jail” in
Missouri and then charged with illegally registering to vote in
Washington because he had been previously convicted of an “infamous
crime,” the information “does not state whether he was then charged
with a felony or a misdemeanor under the laws either of that state or of
36
this [and therefore] [i]t is clear that the information thus failed to state
facts which under the present law of this state would necessarily
constitute an infamous crime”); Becker v. Green County, 184 N.W. 715,
717 (Wis. 1921) (“While there has been much debate as to what
constitutes an infamous crime, we think . . . it is now deemed to mean
. . . a crime punishable by imprisonment in the state prison.”); Isaacs v.
Bd. of Ballot Comm’rs, 12 S.E.2d 510, 511 (W. Va. 1940) (“An offense
punishable by death or penitentiary confinement is a felony. And,
generally, felonies are deemed infamous crimes.” (Citation omitted.)).
We readily recognize not all courts have interpreted infamous
crime to include all felonies. In People v. Enlow, the Colorado Supreme
Court interpreted a Colorado statute declaring a county office vacant
upon the incumbent’s conviction of an infamous crime. 310 P.2d 539,
541 (Colo. 1957) (en banc). The court observed that in Colorado, “all
infamous crimes are felonies, but not all felonies are infamous crimes”
and determined that federal tax evasion was not an infamous crime. Id.
at 544–47. However, the court expressly relied on another Colorado
statute that provided a specific list of infamous crimes that did not
include tax evasion. Id. at 545–46. The situation here is different. We
are interpreting a constitutional infamous-crime provision that is
backstopped by a different legislative definition.
In Wier, the Delaware Supreme Court interpreted a provision of the
Delaware Constitution banning persons from holding public office who
had been convicted of “embezzlement of the public money, bribery,
perjury or other infamous crime.” 369 A.2d at 1078 n.3 (quoting Del.
Const. art. 2, § 21). The court said that “not . . . every felony is
necessarily a crime of infamy” and “the totality of the circumstances in
each case must be examined before a determination may be made that a
37
specific felony is infamous.” Id. at 1079. On the facts, the court found
that a convicted rapist had committed an infamous crime. Id.
In Snyder, the Indiana Supreme Court held that “an infamous
crime is one involving an affront to democratic governance or the public
administration of justice such that there is a reasonable probability that
a person convicted of such a crime poses a threat to the integrity of
elections.” 958 N.E.2d at 782. In embracing the “affront to democratic
governance” standard, however, the Indiana Supreme Court relied
heavily on a 1966 California decision, Otsuka v. Hite, 414 P.2d 412, 414
(Cal. 1966) (en banc), abrogated by Ramirez v. Brown, 507 P.2d 1345
(Cal. 1973) (en banc). See Snyder, 958 N.E.2d at 781–82. Otsuka’s
analysis was driven by an interpretation of the Fourteenth Amendment
that has since been overruled by the United States Supreme Court.
Compare Otsuka, 414 P.2d at 422–23, with Richardson v. Ramirez, 418
U.S. 24, 54–55, 94 S. Ct. 2655, 2671, 41 L. Ed. 2d 551, 571 (1974).
In Otsuka, the California Supreme Court limited the scope of
California’s infamous-crimes provision to crimes involving an affront to
democratic governance to avoid what it believed was a conflict with the
Equal Protection Clause of the Fourteenth Amendment. Otsuka, 414
P.2d at 422–23. However, a few years later, the United States Supreme
Court undermined the jurisprudential basis for Otsuka when it held that
felon disenfranchisement is not subject to strict scrutiny because it “has
an affirmative sanction in s[ection] 2 of the Fourteenth Amendment, a
sanction which was not present in the case of the other restrictions on
the franchise which were invalidated in the cases on which respondents
rely.” Richardson, 418 U.S. at 54, 94 S. Ct. at 2671, 41 L. Ed. 2d at 571.
In 2011, the Snyder court discussed Otsuka at length and relied on it,
but without referring to its Fourteenth Amendment underpinnings or
38
what happened to those underpinnings in Richardson. See Snyder, 958
N.E.2d at 781–82.
Notwithstanding, no objective evidence exists that the founders of
our Iowa Constitution adopted or intended to adopt a concept of infamy
restricted to those crimes that undermine the integrity of the election
process or any comparable standard, or that our state evolved to
embrace such a standard at any time in our history. In Chiodo, we
indicated infamous crime as a disqualification from voting was a means
to avoid undermining the integrity of elections. 846 N.W.2d at 855–56.
This observation did not establish a standard, but identified a broad
rationale for the constitutional provision. See id. A standard must still
exist, and a standard based on felonies is not necessarily inconsistent
with the rationale of upholding the integrity of elections. The bottom line
is that throughout history the concept of infamous crime may have
included crimes in addition to felonies, but it always included felonies or
crimes that would be classified as felonies today.
It is also important to observe that in the generation that has
passed since the 1994 statute, there has been no objective public sign or
movement to redefine infamy as the disqualifying standard—until this
case. Even Chiodo came to us as an isolated action by a candidate for
public office to disqualify his opposing candidate because of a prior
conviction for the crime of operating while intoxicated. Id. at 847.
Instead, the public discourse in Iowa since the 1994 legislative
enactment has essentially been limited to the issue of reinstating voting
rights after a felon has discharged his or her sentence, as shown by the
39
actions of our last three governors. No public action has been formally
taken to limit the felonies considered to be infamous crimes. 16
In interpreting our constitution, we must confine our analysis to
the history we have been given and the evidence and facts as they exist.
At times, this required approach has allowed us to expand constitutional
rights beyond what previously existed. See Varnum v. Brien, 763 N.W.2d
862, 883–84 (Iowa 2009) (finding same-sex and opposite-sex couples to
be similarly situated for purposes of marriage laws). But these times
occur when the evidence and understanding of today clearly supports the
result. See id. at 889–96 (examining evidence regarding homosexuality,
marriage, and children).
We observe some evidence from social science professionals and
other experts that identify problems associated with the
disenfranchisement of voters, including convicted felons. See Regina
Austin, “The Shame of It All”: Stigma and the Political Disenfranchisement
of Formerly Convicted and Incarcerated Persons, 36 Colum. Hum. Rts. L.
Rev. 173, 182–84 (2004) (discussing the effect of incarceration on the
voting and political power of ex-offenders, their families, and their
communities); Atiba R. Ellis, Tiered Personhood and the Excluded Voter,
90 Chi.-Kent L. Rev. 463, 476 (2015) (“[D]isenfranchisement concerning
formerly incarcerated felons makes those felons unequal to other citizens
16In 2007, the general assembly adopted new election-related legislation. See
2007 Iowa Acts ch. 59 (codified in scattered sections of Iowa Code (2009)). This
legislation provided, among other things, that a voter could be challenged on the ground
that he or she “has been convicted of a felony, and the person’s voting rights have not
been restored.” Id. § 12 (codified at Iowa Code § 49.79(2)(f)).
To the present day, every member of the general assembly must file an affidavit
of candidacy as a condition of running for office. The affidavit recites that the candidate
knows she or he cannot run for office if she or he has been convicted of a “felony or
other infamous crime.” Iowa Code § 43.18(9) (2013).
40
within the political community.”); Brian Pinaire, Milton Heumann &
Laura Bilotta, Barred from the Vote: Public Attitudes Toward the
Disenfranchisement of Felons, 30 Fordham Urb. L.J. 1519, 1540–41
(2003) (discussing survey findings of Americans’ attitudes toward the
voting rights of felons, concluding 81.7% of those surveyed were in favor
of restoration of voting rights, but noting only 9.9% felt felons should
never lose the right to vote). The amici curiae also raised concerns
regarding the permanent nature of disenfranchisement under the
constitution, our statutes, and the current administrative restoration
process. This evidence, however, falls far short of identifying objective
community standards of infamy and does not illuminate the meaning of
infamous crimes today. It also does not carry the weight needed to
undermine the legislative judgment expressed in 1994 to include all
felonies as infamous crimes.
We also observe the presence of a growing movement in our
country and state that emphasizes the purpose of rehabilitation and the
need to reintegrate into society those who have served their sentences
through the restoration of citizenship rights. Yet the restoration of voting
rights is a different issue from the definition of those crimes that result
in disqualification and is not before us.
Finally, we acknowledge that voter disqualification based on
criminal convictions has a disproportionate impact on voting rights of
African Americans and perhaps other groups in society. Yet this
outcome is tied to our criminal justice system as a whole and is not
isolated to the use of the infamous-crime standard. Racial disparity
must be eliminated in society, but its unwanted presence does not
necessarily undermine the concept or current definition of infamous
crime as a standard for voter disqualification. Moreover, no evidence
41
suggests this state adopted or maintained infamy to discriminate against
minority groups.
We also reject Griffin’s claim that her crime of conviction is not
infamous because it was not associated with violence. Infamy has never
required a violent act. Additionally, the history of Griffin’s crime does not
support its exclusion from the concept of infamy. In fact, it has
historically been viewed to be a more serious crime.
The unlicensed, unprescribed sale or other distribution of cocaine
has been illegal in the State of Iowa since 1902. See 1902 Iowa Acts
ch. 110 (codified at Iowa Code §§ 2596-a to -c (1902 Supp.)). In the early
1900s, cocaine was treated the same as other narcotic drugs and could
be prescribed for medical purposes by a physician or dentist. Iowa Code
§ 2596-a. Punishment for violation of the Act—unprescribed or
unlicensed distribution—only resulted in a fine for a first offense, then
up to three months in jail for a subsequent offense. Id. § 2596-b. The
punishment changed in 1924, when the regulation of the sale and
distribution of narcotic drugs was expanded. See Iowa Code §§ 3151–
3155, 3168 (1924). At that point, the possession or sale of any narcotic,
including cocaine, without a prescription or license became a felony and
was punishable by imprisonment in the penitentiary for up to ten years.
Id. §§ 3151–3154, 3168, 12890. Moreover, the delivery of cocaine is
criminal in all fifty states as well as under federal law. 17
17See 21 U.S.C. § 841; Ala. Code § 13A–12–231 (West, Westlaw through Act
2016–376 of 2016 Reg. Sess.); Alaska Stat. Ann. § 11.71.030 (West, Westlaw through
2016 2d Reg. Sess. of 29th Leg.); Ariz. Rev. Stat. Ann. § 13-3408 (West, Westlaw
through legis. effective May 17, 2016 of 2d Reg. Sess. of 52d Leg.); Ark. Code Ann. § 5–
64–422; Cal. Health & Safety Code § 11352 (West, Westlaw through urgency legis.
through chapter 22 of 2016 Reg. Sess.); Colo. Rev. Stat. Ann. § 18–18–405 (West,
Westlaw current through Apr. 22, 2016 of 2d Reg. Sess. of 70th Gen. Assemb.); Conn.
Gen. Stat. Ann. § 21a–277 to –278 (West, Westlaw through Pub. Acts effective June 7,
2016); Del. Code Ann. tit. 16, §§ 4752–4754 (West, Westlaw through 80 Laws 2016,
42
Delivery of cocaine is not a new felony, and its classification and
associated punishment have not been found disproportional to the
offense committed. Nor is it an offense that is a felony in some states
_________________________
chapter 243); D.C. Code Ann. § 48–904.01 (West, Westlaw through May 11, 2016); Fla.
Stat. Ann. § 893.135(1)(b) (West, Westlaw through chapters from 2016 2d Reg. Sess. of
24th Leg.); Ga. Code Ann. §§ 16–13–30 and –31 (West, Westlaw through 2016 Reg.
Sess. of Ga. Gen. Assemb.); Haw. Rev. Stat. Ann. § 712–1241 (West, Westlaw through
Act 51 of 2016 Reg. Sess.); Idaho Code Ann. § 37–2732 (West, Westlaw through ch. 47
of 2016 2d Reg. Sess. of 63d Idaho Leg.); 720 Ill. Comp. Stat. Ann. 570/401 (West,
Westlaw through P.A. 99–506 of 2016 Reg. Sess.); Ind. Code Ann. § 35-48-4-1 (West,
Westlaw through 2016 2d Reg. Sess. of 119th Gen. Assemb.); Kan. Stat. Ann. § 21–
5705 (West, Westlaw through 2016 Reg. Sess.); Ky. Rev. Stat. Ann. § 218A.1412 (West,
Westlaw through 2016 Reg. Sess.); La. Stat. Ann. § 40:967 (West, Westlaw through
2016 1st Extraordinary Sess.); Me. Rev. Stat. Ann. tit. 17-A, § 1103 (West, Westlaw
through 2015 2d Reg. Sess. of 127th Leg.); Md. Code Ann., Crim. Law § 5–602 (West,
Westlaw through 2016 Reg. Sess. of Gen. Assemb.); Mass. Gen. Laws Ann. ch. 94C,
§ 32A (West, Westlaw through ch. 115 of 2016 2d Ann. Sess.); Mich. Comp. Laws Ann.
§ 333.7401 (West, Westlaw through P.A.2016, No. 146, of 2016 Reg. Sess., 98th Leg.);
Minn. Stat. Ann. §§ 152.021–.023 (West, Westlaw through 2016 Reg. Sess.); Miss. Code
Ann. § 41–29–139; Mo. Ann. Stat. § 195.211 (West, Westlaw through 2016 2d Reg.
Sess. of 98th Gen. Assemb.); Mont. Ann. Stat. §§ 45–9–101, –102 (West, Westlaw
through 2015 Sess.); Neb. Rev. Stat. Ann. § 28–416 (West, Westlaw through 2d Reg.
Sess. of 104th Legis.); Nev. Rev. Stat. Ann. § 453.3395 (West, Westlaw through 78th
Reg. Sess. and 29th Special Sess.); N.H. Rev. Stat. Ann. § 318-B:26 (West, Westlaw
through ch. 160 of 2016 Reg. Sess.); N.J. Stat. Ann. § 2C:35–5 (West, Westlaw through
L. 2016, c. 4); N.M. Stat. Ann. § 31–31–20, (West, Westlaw through 2d Reg. Sess. of 52d
Leg. (2016) in effect by May 18, 2016); N.Y. Penal Law §§ 220.06, .16 (McKinney,
Westlaw through L. 2016, chs. 1 to 64); N.C. Gen. Stat. Ann. § 90–95 (West, Westlaw
through 2016–4 of 2016 Extra and Reg. Sess. of Gen. Assemb.); N.D. Cent. Code Ann.
§ 19–03.1–23 (West, Westlaw through 2015 Reg. Sess. of 64th Leg.); Ohio Rev. Code
Ann. § 2925.03 (West, Westlaw through Files 1 to 77 of the 131st Gen. Assemb. (2015–
2016)); Okla. Stat. Ann. tit. 63, § 2–401 (West, Westlaw through ch. 387 of 2d Reg.
Sess. of 55th Leg. (2016)); Or. Rev. Stat. Ann. § 475.880 (West, Westlaw through legis.
effective June 2, 2016 of 2016 Reg. Sess.); 35 Pa. Stat. and Const. Stat. Ann. § 780–113
(West, Westlaw through 2016 Reg. Sess. Act 35); R.I. Gen. Laws Ann. § 21–28–4.01
(West, Westlaw through ch. 32 of Jan. 2016 Sess.); S.C. Code Ann. § 44–53–370 (West,
Westlaw through 2016 Act No. 167); S.D. Codified Laws § 22–42–2 (West, Westlaw
through Sess. Laws effective June 30, 2016); Tenn. Code Ann. § 39–17–417; Tex. Health
& Safety Code Ann. § 481.102 (West, Westlaw through 2015 Reg. Sess. of 84th Legis.
Reg. Sess.); Utah Code Ann. § 58–37–8 (West, Westlaw through 2015 1st Spec. Sess.);
Vt. Stat. Ann. tit. 18, § 4231 (West, Westlaw through No. 115 of 2015–2016 Gen.
Assemb. except Act Nos. 103 & 113); Va. Code Ann. § 18.2–248 (West, Westlaw through
end of 2015 Reg. Sess.); Wash. Rev. Code Ann. § 69.50.401 (West, Westlaw through
2016 Reg. Sess.); W. Va. Code Ann. § 60A–4–401 (West, Westlaw through 2016 Reg.
Sess. legis.); Wis. Stat. Ann. § 961.41 (West, Westlaw through 2015 Act 392); Wyo. Stat.
Ann. § 35–7–1031 (West, Westlaw through 2015 Gen. Sess.).
43
and a misdemeanor in others—a difference that might challenge the
continuing nature of the infamy attaching to offense. Instead, for over
ninety years it has been and still remains a serious crime in this state.
Any easing of the societal judgment toward the criminal nature of some
drugs and some types of offenses remains nebulous, and in no cases we
could find has the easing extended to cocaine delivery. It is not
misplaced within our law as a felony offense.
Griffin’s remaining challenges to the statutes and regulations
governing voting and the restoration process were dependent on a finding
that her conviction did not qualify as an infamous crime. Since we
conclude that infamous crime under the constitution means felony
crime, we need not address these issues.
Our great advantage as a democracy is found in the clamor of
debate democracy encourages. See 1 Alexis de Tocqueville, Democracy in
America 265–67 (Henry Reeve trans., D. Appleton Co. 1904) (1835). This
advantage, however, is not always shared equally among all people in all
issues. The clamor of debate most often occurs for those issues that
affect those people with the most powerful voices. Yet all issues need the
clamor of debate to advance. Moreover, debate is not just needed for the
politics of democracy. It is also needed by courts when called to interpret
constitutional doctrine in our evolving world to hear the judgment of the
legislature, our citizens, social science, and the scientific disciplines.
In this case, the legislative judgment was clearly expressed, and
there are no facts or scientific evidence to undermine that judgment. In
truth, the clamor of debate has largely passed over the issue of
disqualifying voters in Iowa for a conviction of an infamous crime, and
courts are unable to move issues forward on their own perceptions of
infamy in today’s society. In this case, there is insufficient evidence to
44
overcome the 1994 legislative judgment, and we must accept it today as
the standard for infamous crime. It will be up to our future democracy
to give the necessary voice to the issue and engage in the debate that
advances democracy.
In the end, we are constrained to conclude that all objective indicia
of today’s standard of infamy supports the conclusion that an infamous
crime has evolved to be defined as a felony. This is the community
standard expressed by our legislature and is consistent with the basic
standard we have used over the years. It is also consistent with the
constitutional history, text, and purpose of the provision.
VIII. Conclusion.
We affirm the district court’s grant of summary judgment in favor
of Secretary of State Pate and Lee County Auditor Fraise and dismissal of
Griffin’s claim.
AFFIRMED.
Waterman, Mansfield, and Zager, JJ., join this opinion. Wiggins,
J., files a dissenting opinion in which Hecht and Appel, JJ., join. Hecht,
J., files a dissenting opinion in which Wiggins and Appel, JJ., join.
Appel, J., files a dissenting opinion in which Wiggins and Hecht, JJ.,
join.
45
#93/15–1661, Griffin v. Pate
WIGGINS, Justice (dissenting).
In Chiodo v. Section 43.24 Panel, I was compelled to dissent from
the plurality decision. 846 N.W.2d 845, 863–65 (Iowa 2014) (Wiggins, J.,
dissenting). In doing so, I made two points. The first was that it is this
court’s duty and obligation, not the legislature’s, to interpret the meaning
of the phrase “infamous crime” in article II, section 5 of the Iowa
Constitution. Id. at 864. It appears from the opinions filed today, the
court agrees with this principle. Today, I reaffirm my position on this
point of law.
I also agree with the court’s view that the Iowa Constitution is a
living document. As we have said numerous times in our jurisprudence:
[W]e recognize that unlike statutes, our constitution sets out
broad general principles. A constitution is a living and vital
instrument. Its very purpose is to endure for a long time
and to meet conditions neither contemplated nor foreseeable
at the time of its adoption. Thus the fact a separate juvenile
court system was not in existence at the time our
constitution was adopted in 1857 should not blindly
mandate an absurd result because our forefathers had not
yet seen fit to establish a separate juvenile court system.
Sometimes, as here, the literal language must be disregarded
because it does violence to the general meaning and intent of
the enactment.
In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977) (citations omitted); see
also State v. Barker, 116 Iowa 96, 105, 89 N.W. 204, 207 (1902) (reciting
these same principles over 100 years ago).
In my Chiodo dissent, I also expressed unwillingness to deviate
from our prior caselaw defining “infamous crimes” due to the uncertainty
it would cause for voters and election officials in this state. 846 N.W.2d
at 864–65. Today I am prepared to change my position on this point. I
do so for two reasons. First, Justices Appel and Hecht have set forth
46
compelling reasoning and analysis in their opinions concerning how
voters and election officials can determine who is an eligible voter.
Additionally, the majority’s analysis is flawed in that it does not truly
consider the consensus among other states, most of which allow at least
certain felons to vote. By focusing solely on our cruel-and-unusual-
punishment jurisprudence to arrive at its conclusion, the majority’s
incomplete analysis gives short shrift to a matter concerning individual
rights. Its approach represents a stark retreat from the robust analysis
of individual rights under the Iowa Constitution this court traditionally
applies. See generally Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
(applying our traditional approach to matters involving individual rights
under the Iowa Constitution).
More importantly, the brief of the Polk County Auditor has caused
me to reevaluate my thoughts on this issue. The Polk County Auditor
administers the election in the largest and most diverse county in the
state. In his brief, he states that under a protocol similar to that urged
by Justices Appel and Hecht, he would be able to implement and
administer a policy that would ensure all persons with prior felony
convictions who were eligible to vote could do so.
For this reason, I cannot join the majority opinion. Therefore, I
dissent and join Justices Appel and Hecht in their dissents.
Hecht and Appel, JJ., join this dissent.
47
#15–1661, Griffin v. Pate
HECHT, Justice (dissenting).
I do not share the majority’s conclusion that Griffin was convicted
of an “infamous crime” supporting her disenfranchisement under article
II, section 5 of the Iowa Constitution or Iowa Code section 39.3(8)
(2013). 18 I believe an infamous crime that disqualifies a citizen from
voting must at least feature some nexus to the electoral process.
Accordingly, I respectfully dissent.
The majority concludes Griffin’s 2008 conviction of delivery of 100
grams or less of cocaine in violation of Iowa Code section
124.401(1)(c)(2)(b) (2007), a Class “C” felony, is an infamous crime. 19
The majority also notes all fifty states criminalize delivery of cocaine and
the offense is a serious one causing continuing harm to society.
As the majority correctly observes, the drafters of our constitution
did not define “infamous” in this context. The many meanings courts
and legal scholars assigned to the word over the centuries are well
documented in the majority’s opinion. Although the legislature
expressed its understanding in 1994 that all felony crimes are infamous
for purposes of identifying eligible voters, see 1994 Iowa Acts ch. 1169,
§ 7, the task of interpreting the Iowa Constitution falls to this court—not
18In addition to her challenge to section 39.3(8) as applied, Griffin contends
several other statutes regulating election processes—including Iowa Code sections
43.18(9), 48A.6(1), 48A.14(1)(e), 48A.30(1)(d), 49.79(2)(f) and 57.1(2)(c)—as well as the
current voter registration forms and related regulations, the Governor’s Executive Order
70, and related procedures all serve to disqualify persons convicted of noninfamous
felony offenses as electors and are therefore unconstitutional as applied.
19Griffin also has a 2001 conviction for possession of ethyl ether in violation of
Iowa Code section 124.401(4)(c) (2001), a Class “D” felony. That conviction is not
relevant in this case because Griffin discharged the sentence in 2006, when Executive
Order 42 was in force, and Executive Order 70 does “not affect the restoration of rights
. . . granted prior to” its 2011 effective date.
48
the legislature. See Varnum v. Brien, 763 N.W.2d 862, 875 (Iowa 2009);
see also Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 853 (Iowa 2014)
(“In the end, it is for the courts to interpret the constitution.”); Peel v.
Burk, 197 N.W.2d 617, 622 (Iowa 1972) (Reynoldson, J., dissenting)
(“This court, not the legislature, is empowered to interpret the
constitution.”). “The legislature may not add to or subtract from the
voter qualifications under the constitution.” Chiodo, 846 N.W.2d at 852;
Coggeshall v. City of Des Moines, 138 Iowa 730, 737, 117 N.W. 309, 311
(1908).
In the plurality opinion in Chiodo, Chief Justice Cady explained
“the concept of disenfranchisement was not meant to punish certain
criminal offenders or persons adjudged incompetent, but to protect the
‘purity of the ballot box.’ ” Chiodo, 846 N.W.2d at 855 (quoting Snyder v.
King, 958 N.E.2d 764, 781 (Ind. 2011)). Further explicating the drafters’
objective in article II, section 5, he wrote,
Our drafters wanted the voting process in Iowa to be
meaningful so that the voice of voters would have effective
meaning. Thus, disenfranchisement of infamous criminals
parallels disenfranchisement of incompetent persons under
article II, section 5. The infamous crimes clause
incapacitates infamous criminals who would otherwise
threaten to subvert the voting process and diminish the
voices of those casting legitimate ballots. As a result, the
regulatory focus of disenfranchisement under article II
reveals the meaning of an “infamous crime” . . . looks not
only to the classification of the crime itself, but how a voter’s
conviction of that crime might compromise the integrity of
our process of democratic governance through the ballot box.
Id. at 856. I joined the plurality opinion in Chiodo, see id. at 857, and I
continue to believe the animating purpose of the disenfranchisement
clause is the protection of the voting process and the integrity of the
institutions of democratic governance. With this fundamental
understanding of the purpose of the clause, I now turn to the analytical
49
framework for deciding whether the district court erred in interpreting
Iowa Code section 39.3(8) (2013) and article II, section 5 of the Iowa
Constitution.
The right Griffin asserts—the right to vote—is a fundamental right.
Devine v. Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978); accord Chiodo,
846 N.W.2d at 848 (“Voting is a fundamental right in Iowa, indeed the
nation.”). Voting occupies a “vital role in our system of government by
providing citizens with a voice in our democracy and in the election of
those who make the laws by which all must live.” Chiodo, 846 N.W.2d at
848. Although this right is essential to fulsome participation in self-
government, it is not absolute. Id. at 849. Because the right is
fundamental, we must apply strict scrutiny in deciding Griffin’s claim. A
law that impedes a fundamental right is unconstitutional if it is not
narrowly tailored to serve a compelling government interest. Santi v.
Santi, 633 N.W.2d 312, 317 (Iowa 2001). In my view, disenfranchising
voters for class “C” felony drug offenses will not advance the integrity of
elections or institutions of government. Indeed, I am not convinced that
Griffin’s conviction for delivery of cocaine or her subsequent exercise of
the right to vote will tend to threaten or subvert the voting process; nor
will it diminish in any untoward manner the voices of other voters.
I further conclude section 39.3(8) and the related statutes
disenfranchising all felons fail to pass strict scrutiny analysis because
the classification of all felonies as infamous crimes is not narrowly
tailored to serve any legitimate purpose of the disqualification clause.
The statute’s definition of infamous instead sweeps broadly past those
crimes which might be plausibly understood to diminish the integrity of
the voting process or the integrity of democratic institutions of
governance, and it disenfranchises persons—like Griffin—whose criminal
50
conduct is completely unrelated to any legitimate nonpunitive and
protective purpose of the disqualification clause.
Our strict scrutiny of the statutory framework disenfranchising
Griffin and others similarly situated cannot be driven by majoritarian
preferences about the propriety of disqualifying all felons as electors.
Given the fundamental nature of the right to vote, we should not deny it
to Griffin just because most folks favor disenfranchisement of all felons;
neither should we deny her the right because “that is the way it’s always
been in Iowa” or because “that’s the way it’s done elsewhere.” Our
scrutiny must instead confront the hard question of whether there is a
compelling governmental interest in disenfranchising her for drug-related
offenses. In my view, there is not.
The notion that allowing Griffin to vote will render the ballot box
impure, disrupt the electoral process, or damage institutions of
democratic governance is fanciful at best. I posit there is no legitimate
basis for concluding Griffin’s vote will have any such adverse effects; and
precluding her vote will, in my view, advance no compelling government
interest. Her disenfranchisement instead seems to rest on the notion
that allowing convicted felons who have discharged their sentences to
vote “will taint the body politic.” Mary Sigler, Defensible
Disenfranchisement, 99 Iowa L. Rev. 1725, 1730 (2014) [hereinafter
Sigler]. But that notion is misguided because it relies on the “mystical
claim” that all felons are tainted and therefore will somehow infect the
entire electoral process, see George P. Fletcher, Disenfranchisement as
Punishment: Reflection on the Racial Uses of Infamia, 46 UCLA L. Rev.
1895, 1899 (1999), and because it is “a call for retribution with no
tangible benefit,” Mark Haase, Civil Death in Modern Times: Reconsidering
51
Felony Disenfranchisement in Minnesota, 99 Minn. L. Rev. 1913, 1933
(2015) [hereinafter Haase].
In reaching my conclusion that section 39.3(8) and the related
statutes relied upon by the respondents in denying Griffin access to the
polls fail to serve a compelling government interest, I am aided by
“constitutional facts,” including public policy arguments. See Varnum,
763 N.W.2d at 881, 898–906 (analyzing “all of the material tendered by
the parties,” including public policy arguments, to assist in the review of
the constitutionality of a statute); Santi, 633 N.W.2d at 318–19
(considering whether a law “strengthen[ed] extended familial bonds” or
caused “family disruption” in deciding a constitutional challenge to a
statute). I have also considered the societal impact of denying the
franchise to those convicted of noninfamous crimes. See Varnum, 763
N.W.2d at 881 (noting “judicial decision-making in the context of
constitutional issues” may require courts to analyze facts beyond those
relating to the parties and their particular circumstances, including
“social, economic, political, or scientific facts”).
Following the issuance of Executive Order 70, more than 14,000
Iowans were disenfranchised in almost four years. See Editorial, No Vote
for Iowa’s Felons, Cedar Rapids Gazette (Dec. 7, 2014),
www.thegazette.com/subject/opinion/staff-editorial/no-vote-for-iowas-
felons-20141207 (reporting that from January 2011 to December 2014,
“roughly 14,500” Iowans completed their sentences after committing a
felony, but fewer than 100 regained their voting rights). Because many
of these disenfranchised felons—like Griffin—were convicted of crimes
having no relationship to the integrity of the electoral process or other
democratic institutions, I believe a negative societal impact has occurred.
Voting encourages persons to become informed about and involved in
52
their communities’ civic affairs—behaviors that maximize the chances of
rehabilitation for those convicted of crimes. Disqualification, on the
other hand, stigmatizes felons and undermines their reintegration to
society by treating them as second-class citizens even after they have
served their prison sentences. See, e.g., Atiba R. Ellis, Tiered Personhood
and the Excluded Voter, 90 Chi.-Kent L. Rev. 463, 477 (2015)
(“[D]isenfranchisement creates a permanent underclass of citizenry
whose interests are not heard . . . with no hope of ever effectively
reengaging with society.”); Sigler, 99 Iowa L. Rev. at 1739 (“[P]ermanent
exclusion of offenders, certainly those already released from prison, is
tantamount to political exile and inconsistent with the rights and
responsibilities of citizenship . . . .”); Howard Itzkowitz & Lauren Oldak,
Note, Restoring the Ex-Offender’s Right to Vote: Background and
Developments, 11 Am. Crim. L. Rev. 721, 732 (1973) (“The offender finds
himself released from prison, ready to start life anew and yet at election
time still subject to the humiliating implications of disenfranchisement
. . . . Denying him the right to vote forbids his participation in the most
crucial function of a democratic society—the electoral process—and is
likely to reaffirm feelings of alienation and isolation, both so detrimental
to the reformation process.”). Some evidence even suggests
disenfranchisement is associated with increased crime rates. See
Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and
Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev.
193, 213 (2004) (collecting data and concluding “a relationship between
voting and subsequent crime and arrest is . . . supported by empirical
evidence”); see also Hadar Aviram & Jessica L. Willis, Reintegrating
Citizens: Felon Enfranchisement, Realignment, and the California
Constitution, 27 J. C.R. & Econ. Dev. 619, 652–53 (2015) (discussing two
53
studies); Haase, 99 Minn. L. Rev. at 1927 (“The evidence shows that
disenfranchisement does not deter crime or lower recidivism. Public
safety is thus not advanced and may actually be undermined by felony
disenfranchisement.”).
Disenfranchisement of noninfamous felons also tends to depress
the votes of others. The propensity of young people to vote is correlated
with their parents’ behavior and resources. Eric Plutzer, Becoming a
Habitual Voter: Inertia, Resources, and Growth in Young Adulthood, 96
Am. Pol. Sci. Rev. 41, 42–43 (2002). Accordingly, a parent’s
disenfranchisement tends to discourage voting by other family members.
See Christopher Haner, Felon Disenfranchisement: An Inherent Injustice,
26 J. C.R. & Econ. Dev. 911, 917 (2013) [hereinafter Haner] (“Individuals
who are not disenfranchised . . . , especially those with parents who have
suffered disenfranchisement, may not feel that voting is important or
may feel that it is a useless exercise of political power because they do
not see the fruits of exercising this right.”); see also Erika Wood,
Restoring the Right to Vote 12 (2009), www.brennancenter.org/
sites/default/files/legacy/Democracy/Restoring%20the%20Right%20to
%20Vote.pdf.
When disproportionate numbers of citizens in the same community
are denied the right to vote, the political power of the community’s
residents—including those who have never been convicted of a crime—is
weakened. See Aman McLeod et al., The Locked Ballot Box: The Impact of
State Criminal Disenfranchisement Laws on African American Voting
Behavior and Implications for Reform, 11 Va. J. Soc. Pol’y & L. 66, 77–78
(2003) (collecting voter turnout data, comparing it among states, and
concluding “mean voter turnout . . . is statistically lower in states with
moderately to extremely restrictive disenfranchisement laws”); Reuven
54
Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and
International Human Rights Perspectives, 29 B.U. Int’l L.J. 197, 208
(2011) (“[E]xpelling the convict from the community fails to recognize that
she remains a community member.”); see also Haner, 26 J. C.R. & Econ.
Dev. at 917 (“If a neighborhood has a large number of citizens living in it
who are disenfranchised, the community loses power . . . .”).
I am persuaded that disenfranchising persons convicted of
noninfamous offenses has other deleterious social consequences. It is a
component of the “otherness” observed by one commentator, promoting a
separation between community members and law enforcement officers.
See William Stuntz, The Collapse of American Criminal Justice 310–12
(2011). As a result, the effectiveness of community policing may be
undermined, especially in communities with high rates of
disenfranchisement. Cf. id.
I emphasize here my purpose is not to diminish the gravity of
Griffin’s felony conviction, for which she has been sentenced and
punished. I merely conclude continuing to disenfranchise her for that
conviction serves no compelling government interest. Because I believe
Griffin’s disenfranchisement undermines the government’s compelling
interest in her rehabilitation and reintegration to society after her
sentence was discharged, I would reverse the district court and remand
for entry of a judgment declaring Griffin’s 2008 criminal conviction does
not render her presumptively ineligible to vote.
Wiggins and Appel, JJ., join this dissent.
55
#15–1661, Griffin v. Pate
APPEL, Justice (dissenting).
The majority does its best to interpret an anachronistic
constitutional provision in the modern context. It is not an easy task.
For the reasons expressed below, I come to a different conclusion than
the majority. I believe the term “infamous crime” in article II, section 5 of
the Iowa Constitution does not sweep so far as to disqualify Griffin from
voting. As a result, I respectfully dissent.
In this case, Griffin has fully satisfied the demands of the criminal
law as enacted by the Iowa legislature and she has been discharged from
the criminal justice system. In colloquial terms, she has paid her debt to
society and returned to normal life. The question here is whether the
Iowa Constitution permits the legislature to prohibit all felons—
regardless of the nature of the underlying crime—from exercising the
fundamental right to vote after the criminal sanctions imposed as a
result of conviction have been fully satisfied.
The question is determined by our interpretation of article II of the
Iowa Constitution dealing with the right of suffrage. Article II, section 1
generally provides that every citizen who is a resident of the state “shall
be entitled to vote at all elections.” Iowa Const. art. II, § 1. More than a
hundred years ago, we stated that the right to vote is “a political right of
the highest dignity.” Coggeshall v. City of Des Moines, 138 Iowa 730,
737, 117 N.W. 309, 312 (1908). More recently, the United States
Supreme Court has said, “It is beyond cavil that ‘voting is of the most
fundamental significance under our constitutional structure.’ ” Burdick
v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059, 2063, 119 L. Ed. 2d 245,
252 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 184, 99 S. Ct. 983, 990, 59 L. Ed. 2d 230, 241 (1979)).
56
Yet article II, section 5 of the Iowa Constitution disqualifies from
voting persons “adjudged mentally incompetent to vote” or “convicted of
any infamous crime.” Our task is to determine the boundary between
the powerful, general command of article II, section 1—vesting the right
to vote in every citizen—with the exception provided in article II, section
5—disqualifying persons convicted of infamous crimes from voting. See
Hutchins v. Hanna, 179 Iowa 912, 916, 162 N.W. 225, 227 (1917) (“[I]n
interpreting the Constitution, the court should consider all matter in pari
materia; and all provisions on the same subject matter shall, if possible,
be given effect.”).
This case involves three questions. First, what branch of
government decides where the boundary lies between these two
provisions? Second, what substantive standards should the responsible
branch of government use in placing the boundary? Third, how should
the standards be applied in the case of Griffin?
In answering the first question—which branch of government is
responsible for deciding where the boundary lies—I begin with analysis of
the text of article II, section 5 and the historical context surrounding its
development. The “infamous crimes” language of article II, section 5
arose from the Iowa Constitution of 1846. Iowa Const. of 1846, art. III,
§ 5. Prior to 1846, however, a number of state constitutions expressly
vested the power to determine what crimes disqualified persons from
voting in their legislatures. For example, the Indiana Constitution of
1816 provided, “The general assembly shall have full power to exclude
from electing, or being elected, any person convicted of any infamous
crime.” Ind. Const. of 1816, art. VI, § 4; see Snyder v. King, 958 N.E.2d
764, 774–75 (Ind. 2011). Similarly, the Illinois Constitution of 1818
stated, “The General Assembly shall have full power to exclude from the
57
privilege of electing or being elected any person convicted of bribery,
perjury or any other infamous crime.” Ill. Const. of 1818, art. II, § 30.
The Missouri Constitution of 1820 also provided that “[t]he general
assembly shall have power to exclude . . . from the right of suffrage, all
persons convicted of bribery, perjury, or other infamous crime.” Mo.
Const. of 1820, art. III, § 14. The Rhode Island Constitution of 1842
expressly vested in its legislature power over suffrage, stating, “Nor shall
any person convicted of bribery, or of any crime deemed infamous at
common law, be permitted to exercise that privilege, until he be expressly
restored thereto by act of the General Assembly.” R.I. Const. of 1842,
art. II, § 4.
Like the state constitutions of Indiana, Illinois, Missouri, and
Rhode Island, the proposed Iowa Constitution of 1844 explicitly vested
the general assembly with the power to regulate the franchise. Under the
proposed Iowa Constitution, persons were disqualified from voting when
their crimes were declared “infamous by act of the legislature.” Iowa
Const. of 1844, art. III, § 5. In the Iowa Constitution of 1846, however,
the legislature no longer had a role in determining disqualification of
voters related to infamous crimes. The power of the legislature was
deleted, and instead, article III, section 5 simply stated that persons
“convicted of any infamous crime” were disqualified. Iowa Const. of
1846, art. III, § 5.
Against the historical backdrop, I conclude that the deletion of
legislative authority in article III, section 5 should be given its intended
effect. The determination of which crimes might qualify as infamous for
purposes of disqualification from suffrage rests with the court, not with
the general assembly. The plurality in Chiodo v. Section 43.24 Panel
came to the right conclusion on this issue. 846 N.W.2d 845, 855 (Iowa
58
2014) (“[I]t appears the drafters at our 1857 constitutional convention
intended to deprive the legislature of the power to define infamous
crimes.”).
I now turn to the second question: What standard should the court
apply to determine which crimes are infamous? This is a difficult
question, as the term “infamous crime” is famously ambiguous. As noted
by the Supreme Court of Missouri in 1858, the term “infamous” is of
“indefinite import.” Birch v. Benton, 26 Mo. 153, 159 (1858). In Chiodo,
the plurality correctly noted that “[a]ny definition of the phrase ‘infamous
crime’ has vast implications and is not easy to articulate.” 846 N.W.2d
at 856. If there is any agreement in this case, it is that the term
“infamous crime” is ambiguous.
Yet the overall textual context may narrow the range of interpretive
options for ambiguous terms and phrases. Specifically, the drafters of
the Iowa Constitution of 1846 distinguished between the terms
“infamous crimes” and “felonies.” In several places, the Iowa
Constitution used the term “felony.” In article III, section 2 the framers
used the language “treason, felony, or breach of peace.” Iowa Const. of
1846, art. III, § 2. The same phrase is used in article IV, section 12,
which prevented representatives and senators from being arrested when
serving at the General Assembly for all but those crimes. Iowa Const.
art. IV, § 12.
But the framers did not use the term “felony” in article II, section 5
of the Iowa Constitution of 1857. If the 1846 and 1857 framers wished
to disenfranchise all felons, they could have said so. We have often said
that when a legislative body uses different terms in an enactment we
assume different meanings are intended. Johnson v. Iowa Dist. Ct., 756
N.W.2d 845, 850 (Iowa 2008), superseded by statute on other grounds,
59
2009 Iowa Acts ch. 116, § 1; Miller v. Marshall County, 641 N.W.2d 742,
749 (Iowa 2002). Since the framers rejected the term “felony” as the test
for voter disqualification, it would be doubly odd to allow the rejected
term to be reinserted as a result of legislative action, particularly when
the constitutional drafters eliminated the role of the legislature in
defining infamous crimes.
Further, other state constitutions use the term “felony” to
disqualify voters. See, e.g., Del. Const. of 1831, art. IV, § 1 (“[N]o . . .
person convicted of a crime deemed by law felony, shall enjoy the right to
an elector . . . .”); Minn. Const. of 1857, art. VII, § 2 (“[N]o person who
has been convicted of treason, or any felony . . . shall be entitled or
permitted to vote at any election in this State.”). Iowa simply chose
different language.
To me, the text and related history make it quite clear that the
court must determine the meaning of the term “infamous crimes” and
that the term is not synonymous with “felony.” This, of course, is not the
end of the matter, but only a good beginning. Having determined that
the responsibility is vested with the courts to determine the meaning of
infamous crimes and that infamous crimes are not the equivalent of
felonies does not decide the question before us. While all felonies are not
infamous crimes, does Griffin’s felony conviction of delivery of cocaine
qualify as an infamous crime under article II, section 5?
I now turn to the functional context, which may help bring an
ambiguous term into clearer focus. In some circumstances, the context
in which a general term is used will cause us to give it a narrow
interpretation. See Des Moines Flying Serv., Inc. v. Aerial Servs., Inc., 880
N.W.2d 212, 221 (Iowa 2016) (declaring “[c]ontext is king” in
interpretation of an U.C.C. provision); U.S. Bank Nat’l Ass’n v. Lamb, 874
60
N.W.2d 112, 119 (Iowa 2016) (interpreting “all liens” to mean all
judgment liens based on context); Iowa Ins. Inst. v. Core Grp. of Iowa
Ass’n for Justice, 867 N.W.2d 58, 72 (Iowa 2015) (giving a narrow
interpretation to the broad phrase “all information” based on context).
These cases stand for the commonsense proposition that general phrases
with potentially broad application may be given a narrow interpretation
when the context of the phrase so requires.
The question is thus not free-standing or abstract. Instead, as
noted by Professor LaFave, the meaning of the term “infamous crime”
may “depend, to a large extent, on the purpose for which the distinction
is to be made.” 1 Wayne R. LaFave, Substantive Criminal Law § 1.6(d),
Westlaw (database updated Oct. 2015) [hereinafter LaFave]; see also 21
Am. Jur. 2d Criminal Law § 23 (2016) (“The meaning of the term
‘infamous crime’ may vary according to the context in which it arises
. . . .”). The specific question here is the meaning of the term “infamous
crime” in the context of the constitutional disqualification of a citizen
from the fundamental right to vote as an elector.
I take the lesson of these cases and authorities and apply them
here. For instance, in the context of entitlement to presentation before a
grand jury under the Fifth Amendment, the term “infamous crime” turns
on the length of punishment. Ex parte Wilson, 114 U.S. 417, 425–26, 5
S. Ct. 935, 939, 29 L. Ed. 89, 92 (1885). A completely different
approach, however, has been taken to the definition of infamous crime in
the context of competency of a person to testify. In this context, an
infamous crime is determined not by the length of punishment, but on
the nature of the crime. See, e.g., Palmer v. Cedar Rapids & Marion Ry.,
113 Iowa 442, 447, 85 N.W. 756, 758 (1901) (“It is well settled that in
determining whether the crime . . . is an infamous crime, which will
61
disqualify him from testifying, the nature of the crime, and not the
punishment which may be inflicted therefor, is the test.”); 1 Charles F.
Partington, The British Cyclopeadia of Literature, History, Geography,
Law, and Politics 847 (1836) (“A third ground of incompetency is infamy
of character. . . . It is not sufficient that a party has been convicted and
punished for a crime; nor that the punishment itself is deemed by the
public degrading and infamous. But the offense must, in its own nature,
be infamous.”). Here, the question is whether a crime is considered
infamous in the context of disqualification as an elector.
In several of our prior cases, we assumed that Wilson’s treatment
of infamous crime in the context of grand jury indictment provided the
proper framework for evaluating the meaning of the term in the context
of voter disqualification. 114 U.S. at 429, 5 S. Ct. at 941, 29 L. Ed. at
93. For instance, in Blodgett v. Clarke we considered whether a person
who had been convicted of forgery was eligible to run for a position on
this court, which was then an elected position. 177 Iowa 575, 578, 159
N.W. 243, 244 (1916) (per curiam), overruled by Chiodo, 846 N.W.2d at
852. Citing Flannagan v. Jepson, 177 Iowa 393, 399–400, 158 N.W. 641,
643 (1916), which in turn cited Wilson, we held that because forgery was
subject to imprisonment in the penitentiary, it would be considered an
infamous crime. Blodgett, 177 Iowa at 578, 159 N.W. at 244. But the
cut-and-paste job transferring the holding of Wilson into the different
contexts of voter qualification or qualification to hold office, as the Chiodo
plurality pointed out, is not persuasive. 846 N.W.2d at 851.
In considering the meaning of infamous crime in the context of
voter disqualification, Professor LaFave concludes that the meaning
should track the meaning of the term in the context of competency of
62
witnesses rather than the context of grand jury indictment. 1 LaFave
§ 1.6(d). According to Professor LaFave,
Where the purpose was in former times to render a witness
incompetent (or today to authorize the impeachment of the
witness), the term “infamous” properly has reference to those
crimes involving fraud or dishonesty or the obstruction of
justice (sometimes called crimen falsi). Where the term is
used in connection with disbarment or disqualification to
hold office, vote or serve on a jury, it generally has a similar
meaning.
Id.
Professor LaFave cites Snyder in support of his approach. Id.
§ 1.6(d) n.80. In Snyder, the Indiana Supreme Court concluded that the
term “infamous crime” was not synonymous with felony for purposes of
the infamous crimes clause of the Indiana Constitution. 958 N.E.2d at
771. The Snyder court reasoned that the definition of infamous crime
rests upon the context in which it is used. Id. at 777. The Snyder court
recognized that in the context of qualification of witnesses, the focus is
on the nature of the crime itself and not the punishment. Id. at 778.
The Snyder court rejected the proposition that all modern felonies are
infamous, noting that under traditional Indiana evidence law, only nine
classic common law offenses were considered infamous. Id. at 779.
Similarly, infamous crimes under Iowa evidence law traditionally were
treason, crimen falsi, and felonies at common law. Carter v. Cavenaugh,
1 Greene 171, 176 (Iowa 1848).
The Snyder court noted that the Webster’s dictionary
contemporaneous with the enactment of the Indiana Constitution defined
infamous as “most vile; base; detestable.” 958 N.E.2d at 780 (quoting
Noah Webster, A Dictionary of the English Language 202 (rev. ed. 1850)).
For the Indiana court, the question was what crimes could be considered
“most vile; base; detestable” in the context of the purpose of the
63
constitutional provision disqualifying persons convicted of infamous
crimes. Id. The purpose of the constitutional provision, according to the
Snyder court, was “to preserve the integrity of elections.” Id. at 782. In
order for a crime to be infamous under the regulatory constitutional
provision, there had to be a nexus between the crime and the regulatory
purposes of the statute. Id. Infamous crimes, for the purpose of voter
disqualification, thus were those crimes involving “an affront to
democratic governance or the public administration of justice such that
there is a reasonable probability that a person convicted of such a crime
poses a threat to the integrity of elections.” Id. The Snyder court
concluded that there was no such nexus between the crime at issue—
battery—and protection of the “integrity of the election process.” Id. at
782–83.
The Snyder court cited the California case Otsuka v. Hite, 414 P.2d
412 (Cal. 1996) (en banc), 20 in support of its holding. 958 N.E.2d at
781–82. In Otsuka, the California Supreme Court considered whether
conviction of failure to register for selective service amounted to an
infamous crime sufficient to disenfranchise the voter under the California
Constitution. 414 P.2d at 414. Significantly, the disqualification
provision in the California Constitution was nearly identical to article II,
section 5 of the Iowa Constitution and in all likelihood was actually
20The California Supreme Court overruled Otsuka in Ramirez v. Brown, 507 P.2d
1345, 1353 (Cal. 1973). In Ramirez, however, the California Supreme Court overruled
Otsuka not because it went too far in protecting the right to vote, but because it did not
go far enough. Id. The Ramirez court ruled that the California constitutional provision
violated federal equal protection because it imposed undue burdens on the right to vote.
Id. Ramirez was then overturned on appeal by the United States Supreme Court.
Richardson v. Ramirez, 418 U.S. 24, 56, 94 S. Ct. 2655, 2671, 41 L. Ed. 2d 551, 572
(1974). Because of Otsuka’s unique procedural history, the Snyder court’s reliance on
its reasoning remains apt.
64
based upon the Iowa constitutional provision since the delegates to the
1849 California constitutional convention had the Iowa Constitution as a
model. See J. Ross Browne, Report of the Debates in the Convention of
California 24 (1850) (reporting that every member of the convention was
provided a copy of the Constitution of Iowa to “take into consideration
. . . as a basis for the Constitution of California”).
The Otsuka court distinguished between infamous crimes for
purposes of determining when charges must be brought before the grand
jury and infamous crimes for purposes of determining the competency of
a person to testify. 414 P.2d at 421. The Otsuka court held that the
purpose of disqualification was to prevent “morally corrupt and dishonest
voters [who] . . . may reasonably be deemed to constitute a threat to the
integrity of the elective process.” Id. at 422 (emphasis added). Finding no
threat to the elective process, the Otsuka court determined that
conviction for selective service crimes should not be considered infamous
under the constitutional provision. Id. at 425.
Turning to the proper approach to the Iowa Constitution, I begin
with the proposition that the disqualification provision of article II,
section 5 should be narrowly construed for two reasons. First, the right
to vote is fundamental to the democratic process, and as noted by the
Chiodo plurality, abridging the right to vote “must be carefully and
meticulously scrutinized.” 846 N.W.2d at 856 (quoting Devine v.
Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978)). Second, article II, section
5 is a forfeiture provision. The law has traditionally construed forfeiture
provisions in a narrow fashion. See, e.g., In re Wagner, 482 N.W.2d 160,
162 (Iowa 1992); In re Kaster, 454 N.W.2d 876, 877 (Iowa 1990); 3A
Norman J. Singer & Shambie Singer, Statutes and Statutory Construction
§ 68:5, at 340 (7th ed. 2010).
65
Based on the above considerations, I conclude that the approach
in Snyder is the correct one. 958 N.E.2d at 779, 782–83. Infamous
crimes, for purposes of article II, section 5, are those that undermine the
integrity of the election process. As suggested by LaFave, these infamous
crimes are crimen falsi—crimes where the honesty and integrity of the
convicted person is drawn in question, or crimes that interfere with the
electoral process. See 1 LaFave § 1.6(d).
I now turn to the final question: the application of the standard to
this case. I think it is clear that Griffin’s drug crimes do not qualify as
crimen falsi or crimes that interfere with the electoral process. No one
would seriously argue that Griffin—who was placed on probation after
her conviction and now has fully discharged her sentence—poses any
threat to the integrity of the electoral process or that allowing her to vote
threatens the administration of justice. Further, her crime was certainly
not treason or common law felony. Carter, 1 Greene at 177. I would
thus find that Griffin was not convicted of an infamous crime and that
she is entitled to exercise the fundamental right to vote of every citizen
under article II, section 1 of the Iowa Constitution.
I close with some observations on the implications of this case
pointed out by amici who filed helpful briefs in this case. As pointed out
by the briefs of the NAACP Legal Defense and Educational Fund and the
League of Women Voters, the history of voter disqualification has
disturbing features. In southern states after reconstruction, voter
disqualification on the grounds of being convicted of infamous crimes
was used as a tool to prevent African Americans from voting. Indeed, the
Mississippi Supreme Court candidly explained that the purpose of its
constitutional provision prohibiting persons from voting based on
conviction of various offenses was to “obstruct the exercise of the
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franchise by the negro race.” Ratliff v. Beale, 20 So. 865, 868 (Miss.
1896). In 1985, the Supreme Court held that Alabama’s constitutional
provision disenfranchising persons convicted of a crime of moral
turpitude violated equal protection under the United States Constitution.
Hunter v. Underwood, 471 U.S. 222, 233, 105 S. Ct. 1916, 1922, 85
L. Ed. 2d 222, 231 (1985). The Hunter Court concluded that the crimes
selected for inclusion as crimes of moral turpitude “were believed by the
delegates to be more frequently committed by blacks.” Id. at 227, 105
S. Ct. at 1919, 85 L. Ed. 2d at 227.
While there is no allegation of intentional discrimination in this
case, the amici point out that felony disenfranchisement has grossly
disproportionate effects on African American males. Researchers at the
Sentencing Project estimate that approximately twenty-five percent of
African American males in Iowa are disenfranchised by the legislature’s
implementation of article II, section 5. R.A. Lenhardt, Understanding the
Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803, 918–
19 (2004) (citing The Sentencing Project & Human Rights Watch, Losing
the Vote: The Impact of Felony Disenfranchisement Laws in the United
States 8 (1998)). The exclusion of ex-felons in Iowa has produced a
disenfranchisement rate for African Americans in Iowa that is “more than
triple” the national rate. The Sentencing Project, Iowa and Felony
Disenfranchisement 2 (2005), https://web.archive.org/web/
20131019085622/http://www.sentencingproject.org/doc/publications/
fd_iowa.pdf.
The amici further point out that disproportionate voter
disenfranchisement does not simply impact the individual, but penalizes
the communities from which wrongdoers come and reduces their political
clout. As noted by the League of Women Voters, “[o]ne of the most
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prominent and consistent finding[s] in [the] literature is that [felony
disenfranchisement] laws produce a disproportionate effect on black
communities.” See Melanie Bowers & Robert R. Preuhs, Collateral
Consequences of a Collateral Penalty: The Negative Effect of Felon
Disenfranchisement Laws on the Political Participation of Nonfelons, 90
Soc. Sci. Q. 722, 723 (2009).
Another amicus points out that veterans of America’s recent wars
suffer from posttraumatic stress syndrome that can lead to felony
convictions, which, in context, should not be considered so infamous as
to lead to lifetime voter disqualification and the resulting stigma. Today’s
decision, of course, provides little comfort to them.
Further, it is not clear exactly what policies are actually advanced
by voter disenfranchisement. As noted in Dillenburg v. Kramer, “[c]ourts
have been hard pressed to define the state interest served by laws
disenfranchising persons convicted of crimes.” 469 F.2d 1222, 1224 (9th
Cir. 1972). Given the lack of a compelling state interest and the
fundamental individual interests involved, the American Bar Association
recommended in 1981 that “[p]ersons convicted of any offense should not
be deprived of the right to vote either by law or by the action or inaction
of government officials.” Andrew L. Shapiro, Challenging Criminal
Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale
L.J. 537, 560 (1993) (quoting ABA Standards for Criminal Justice: Legal
Status of Prisoners 23—8.4, at 145 (2d ed. 1981)). Further, the
American Law Institute’s Model Penal Code states that “a person who is
convicted of a crime shall be disqualified . . . from voting in a primary or
election if and only so long as he is committed under a sentence of
imprisonment.” Model Penal Code § 306.3(1), 10A U.L.A. 751 (2001).
68
The majority opinion leaves a couple avenues of redress for those
seeking to vote after fulfilling their criminal sanctions. Relief through the
exercise of the gubernatorial power is a possibility, but there is no
constitutional requirement that the governor establish an administrative
process for restoring voting rights. Further, all administrative processes
involve burdens of some kind, some slight, others more substantial.
Another avenue of change, of course, is a constitutional amendment.
But for now, the majority opinion endorses a very broad
interpretation of the disqualification provision of article II, section 5 of
the Iowa Constitution that will disqualify thousands of Iowans from
exercising the fundamental right to vote after they have fully satisfied
their criminal sentences, even without a showing of nexus of the crime to
the integrity of the electoral process. The likelihood is that those
convicted of felonies who have fully served their sentences will have their
rights subject to flip-flopping executive orders depending upon the
political philosophy of the executive rather than upon a more stable legal
regime. Sadly, that is exactly what ensnared Griffin into the law’s web
after she completed her criminal sentence.
Wiggins and Hecht, JJ., join this dissent.