League of United Latin American Citizens Of Iowa v. Iowa Secretary of State Paul Pate

IN THE SUPREME COURT OF IOWA
No. 20–1249
Submitted October 15, 2020—Filed October 21, 2020
LEAGUE OF UNITED LATIN AMERICAN CITIZENS OF IOWA
and MAJORITY FORWARD,
Appellants,
vs.
IOWA SECRETARY OF STATE PAUL PATE, In His Official Capacity,
Appellee.
DONALD J. TRUMP FOR PRESIDENT, INC., REPUBLICAN, NATIONAL
REPUBLICAN SENATORIAL COMMITTEE, NATIONAL REPUBLICAN
CONGRESSIONAL COMMITTEE, and REPUBLICAN PARTY OF IOWA,
Intervenors.
Appeal from the Iowa District Court for Johnson County, Lars G.
Anderson, Judge.
The plaintiffs seek interlocutory review of a district court order
denying a temporary injunction request challenging an absentee ballot
request statute. AFFIRMED.
Per curiam. Oxley, J., filed a dissenting opinion in which
Christensen, C.J., and Appel, J., joined.
Gary Dickey and Jamie Lynn Hunter of Dickey, Campbell & Sahag
Law Firm, P.L.C., and Marc E. Elias and Christopher J. Bryant,
Washington, DC; Kevin J. Hamilton, Amanda J. Beane and Nitika Arora,
Seattle, WA; and Jessica R. Frenkel, Denver, CO., for appellants.
2
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, and Thomas J. Ogden and Matthew L. Gannon, Assistant
Attorneys General.
Alan R. Ostergren, Des Moines, for intervenor-appellee.
Rita Bettis Austen of ACLU of Iowa Foundation, Des Moines, and
Andrew M. Golodny, Elizabeth C. Arkell, and Wendy L. Wysong,
Washington, DC, for amicus curiae American Civil Liberties Union of Iowa,
and Celina Stewart, Washington, DC, for amicus curiae League of Women
Voters of Iowa.
3
PER CURIAM.
The plaintiffs seek an expedited temporary injunction to block
enforcement of a state election law. The law regulates how county auditors
respond when they receive a defective absentee ballot request that
contains incorrect statutorily required identification information or that
omits statutorily required identification information. Under the law,
county auditors must contact the applicant to obtain the required
identification information. The plaintiffs contend requiring county
auditors to contact the applicant to obtain the required identification
information, as opposed to county auditors attempting to correct the
defective requests without additional contact with the applicant, imposes
a “severe burden on the right to vote” that could prevent voters from
receiving and submitting ballots in time to vote in the election.
We believe that the resolution of this case is largely controlled by
our decision last week in Democratic Senatorial Campaign Committee v.
Pate (DSCC v. Pate), ___ N.W.2d ___ (Iowa 2020) (per curiam). In that case,
we upheld a state law requirement that an applicant must provide
identification information (address, birthdate, and voter identification
number) rather than having the identification information prefilled on
forms mailed by county auditors. The state law requirement that the
county auditor contact the applicant to obtain the identification
information to correct the defective application is supported by the same
rationale. The purpose of both requirements is to protect the integrity and
security of the absentee ballot system by requiring the individual
requesting an absentee ballot to provide personal identification
information to verify his or her identity.
On the present record, we are not persuaded the statute imposes a
significant burden on absentee voters. It is not a direct burden on voting
4
itself. Rather, it requires elected officials to collect identification
information from the applicant to correct a defective application when the
applicant attempts to obtain a ballot to vote absentee. We take judicial
notice of the standard statewide absentee ballot request form, which is
included as an appendix to this opinion. The form is clear as to what is
required in order to complete it correctly. We also take judicial notice of
current statistics, which show that, with the exception of two counties, the
rate of absentee ballot requests that have not been fulfilled by county
auditors is extremely low—far lower than the rate predicted by the
plaintiffs. Indeed, the plaintiffs offer no evidence that the challenged
statute will in fact deny any Iowan the right to vote by absentee ballot.
Applying the Anderson–Burdick standard announced by the United States
Supreme Court, we decline to set aside the state law in question for
purposes of the 2020 election.
I. Factual and Procedural Background.
This case concerns a challenge to section 124 of House File 2643
(HF 2643), passed by the legislature and signed into law in June 2020.
2020 Iowa Acts ch. 1121, § 124 (to be codified at Iowa Code § 53.2(4)(b)
(2021)). Sections 123 and 124 of HS 2643 amended parts (a) and (b) of
Iowa Code section 53.2(4) (2020). Id. §§ 123–124 (to be codified at Iowa
Code § 53.2(4)(a)–(b) (2021)). The statute was enacted during the COVID-
19 pandemic. Thus, the statute was presumably passed in anticipation of
greater use of and attention to absentee balloting in the 2020 general
election. See, e.g., Richardson v. Tex. Sec’y of State, ___ F.3d ___, ___, 2020
WL 6127721, at *1 (5th Cir. Oct. 19, 2020) (“[T]he importance of electoral
vigilance rises with the increase in the number of mail-in ballots, a form
of voting in which ‘the potential and reality of fraud is much greater . . .
5
than with in-person , at *voting.’ ” (quoting Veasey v. Abbott, 830 F.3d 216,
239 (5th Cir. 2016) (en banc))).
As amended, Iowa Code section 53.2(4)(a) states,
To request an absentee ballot, a registered voter shall provide:
(1) The name and signature of the registered voter.
(2) The registered voter’s date of birth.
(3) The address at which the voter is registered to vote.
(4) The registered voter’s voter verification number.
(5) The name or date of the election for which the absentee
ballot is requested.
(6) Such other information as may be necessary to determine
the correct absentee ballot for the registered voter.
Id. § 123 (to be codified at Iowa Code § 53.2(4)(a) (2021)) (emphasis added).
Subsection (b), addressing situations in which “insufficient information
has been provided,” was amended to require county auditors to contact
the applicant within twenty-four hours to obtain the required information.
Id. § 124 (to be codified at Iowa Code § 53.2(4)(b) (2021). Further, the
statute now forbids county auditors from using the voter registration
system to complete the missing information themselves. Id. Under the
prior statute that HF 2643 replaced, county auditors were permitted to
use “the best means available” to obtain missing information, which could
include the voter registration system. Id.On July 14, the plaintiffs, League of United Latin American Citizens
of Iowa and Majority Forward, filed a lawsuit against Iowa Secretary of
State Paul Pate. The lawsuit sought to prevent Pate from enforcing the
challenged portion of HF 2643. Various Republican campaign
organizations filed a motion to intervene on July 24, which the district
court granted.
Meanwhile, on July 17, the Secretary of State announced that a
uniform statewide absentee ballot request form would be used for the
6
November 2020 election and arranged for it to be mailed to all registered
voters in Iowa. This same form is also available on the Secretary of State’s
and all county auditors’ websites. This one-page form provides yellow
highlighting for the items ballot requesters are statutorily required to
provide. It also states, conspicuously, “In order to receive an absentee
ballot, a registered voter MUST provide the following necessary
information: [listing the information required by Iowa Code section
53.2(4)(a)].” It also has a space for a contact email and phone number and
states, conspicuously, “All voters are encouraged to provide their phone
number and/or email address in the event their County Auditor needs to
confirm any information on the request form.”
The plaintiffs filed a request for temporary injunction on August 10.
The district court set a hearing on the request for September 23. Three
weeks later, the plaintiffs filed a motion requesting an earlier hearing date.
The district court denied that motion and held the hearing September 23.
Two days later, the district court denied the plaintiffs’ request for a
temporary injunction. We granted the plaintiffs’ request for an
interlocutory appeal on October 14.
II. The Plaintiffs’ Temporary Injunction Request.
Courts consider several factors in deciding whether to grant a
temporary injunction, but both the district court in its order and the
parties in their briefs focus our attention on the primary consideration in
this case: A temporary injunction is available only if the party seeking the
injunction can show a “likelihood of success on the merits.” Max 100 L.C.
v. Iowa Realty Co., 621 N.W.2d 178, 181 (Iowa 2001) (en banc). This
means that for a court to enter a temporary injunction, the parties
requesting it must convince the court they have a likelihood of succeeding
at the conclusion of the case after the court has heard all the evidence.
7
Temporary injunctions are equitable remedies that exist only to remedy
legal wrongs, and if a plaintiff cannot show a likelihood of success in
proving that legal wrong, there’s no basis to provide a temporary remedy.
The plaintiffs assert HF 2643, by prohibiting county auditors from
using voter registration databases to correct or provide the statutorily
required identification information on an absentee ballot request, will
cause unnecessary delays with a “cumulative result . . . that tens of
thousands of Iowans will face a serious risk of losing their ability to vote
absentee.” The plaintiffs urge that unless we block enforcement of the law,
many voters “will be unable to vote at all, either due to confusion over
whether they can now vote in person having applied to vote in absentee,
or because they are unable to or unwilling to during a pandemic.”
The plaintiffs’ prayer for relief in this case asks for “an order
declaring [the relevant section of HF 2643] violates the Iowa Constitution.”
That is a “facial” challenge to the statute. A facial challenge asserts the
law always operates unconstitutionally and not just as applied in
particular circumstances. A challenge that a law is facially
unconstitutional is “the most difficult . . . to mount successfully” because
the challenger must show the law “is unconstitutional in all its
applications.” Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 231
(Iowa 2018) (first quoting United States v. Salerno, 481 U.S. 739, 745, 107
S. Ct. 2095, 2100 (1987)). Facial challenges are disfavored because they
“often rest on speculation” and
run contrary to the fundamental principle of judicial restraint
that courts should neither “anticipate a question of
constitutional law in advance of the necessity of deciding it”
nor “formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.”
8
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450,
128 S. Ct. 1184, 1191 (2008) (quoting Ashwander v. Tenn. Valley Auth.,
297 U.S. 288, 346–47, 56 S. Ct. 466, 483 (1936) (Brandeis, J.,
concurring)).
To evaluate a challenge to a statute impacting the right to vote, we
use the balancing approach described in Anderson v. Celebrezze, 460 U.S.
780, 789, 103 S. Ct. 1564, 1570 (1983), and Burdick v. Takushi, 504 U.S.
428, 434, 112 S. Ct. 2059, 2063 (1992), which bases the rigorousness of
our analysis on the extent the challenged law burdens voters’
constitutional rights. DSCC v. Pate, ___ N.W.2d at ___. On that spectrum,
strict scrutiny—the most rigorous test and the one the plaintiffs ask us to
apply here—is reserved for laws that create “severe” restrictions on the
right to vote. Burdick, 504 U.S. at 434, 112 S. Ct. at 2063–64. Conversely,
when the challenged law imposes only “reasonable, nondiscriminatory
restrictions” that impact voting, we apply a deferential standard of review.
Id. (quoting Anderson, 560 U.S. at 788, 103 S. Ct. at 1570).
Election laws naturally impose some burdens on voters. See
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 198, 128 S. Ct. 1610,
1621 (2008) (plurality opinion) (discussing “the usual burdens of voting”).
As we just explained in DSCC v. Pate, requiring a voter wishing to vote
absentee to provide a few items of personal information on an absentee
ballot application is not much different than other burdens normally
involved with voting, like the burden of going to a polling place or the
burden of filling out a ballot correctly. ___ N.W.2d at ___.
In DSCC v. Pate, we recently upheld the requirement that applicants
provide the identification information on the request form, not county
auditors on behalf of applicants. Id. at ___. The rationale supporting the
holding in our recent opinion applies when county auditors receive
9
defective request forms (i.e., ones with incomplete or incorrect information)
and are required to contact the applicants instead of correcting the
identification information or providing the identification information
themselves. The requirements are two sides of the same coin, connected
in upholding the concept that the voter should fill out the absentee ballot
application correctly as a means of assuring the application comes from
the voter. The plaintiffs here, in effect, seek to relieve that burden by
having the auditor correct or provide the identification information.
Instead, the law gives the applicant a second chance to fill out the
application correctly by requiring the auditor to contact the applicant. We
are not persuaded this is a severe burden.
Nor is this requirement discriminatory. All voters, regardless of any
affiliation or personal characteristic, are treated the same. The statute
draws no classifications, let alone any discriminatory ones. Under the
balancing approach, “evenhanded restrictions that protect the integrity
and reliability of the electoral process itself” are generally not considered
“invidious.” DSCC v. Pate, ___ N.W.2d at ___ (quoting Crawford, 553 U.S.
at 189–90, 128 S. Ct. at 1616).
Against this nonsevere, nondiscriminatory burden, we balance a
number of considerations. Under Iowa law, anyone can turn in an
absentee ballot request on behalf of another person. See Iowa Code
§ 53.17(1)(a). The voter need not be the person who actually returns the
absentee ballot request to the auditor. Id.; see also id. § 53.9 (describing
who may not receive absentee ballots on behalf of voters). HF 2643 directs
auditors faced with “insufficient” information on the ballot request, which
might be of two types: (1) missing identification (such as a line left blank);
or (2) inaccurate information provided (such as a wrong birthdate). 2020
Iowa Acts ch. 1121, § 124 (to be codified at Iowa Code § 53.2(4)(b) (2021)).
10
Both types of insufficient information raise potential concerns about
whether the person completing the form is in fact the registered voter.
Missing information raises a legitimate question of why it wasn’t provided;
wrong responses (such as listing a wrong birthdate) arguably give rise to
even sharper questions of why the applicant supplied incorrect
information. The auditor’s direct communication with the voter furthers
the integrity of absentee voting by helping to “ensure that the person
submitting the request is the actual voter.” DSCC v. Pate, ___ N.W.2d at
___.
The plaintiffs argue that because the State has provided no prior
examples of fraud in absentee voting, the State’s argument that HF 2643
serves to prevent fraud carries no weight. That the statute was not passed
in response to evidence of actual fraud is a factor to consider, but it has
little significance when, as here, the statute’s burdens are so minimal. In
Crawford, the Court analyzed—and upheld—a voter identification law in
Indiana where the record showed no evidence of any actual fraud of that
type had occurred in Indiana. 553 U.S. at 196, 202–03, 128 S. Ct. at 1619,
1623. Instances of voter fraud elsewhere involving absentee ballots are
not unheard of. See, e.g., Pabey v. Pastrick, 816 N.E.2d 1138, 1151 (Ind.
2004) (requiring a special election after a candidate’s supporters stood
near polling places and encouraged voters to vote absentee, then sought
to “assist” them in filling out the ballot). Our legislature need not ignore
potential threats, and “should be permitted to respond to potential
deficiencies in the electoral process with foresight rather than reactively.”
Munro v. Socialist Workers Party, 479 U.S. 189, 195, 107 S. Ct. 533, 537
(1986). Reasonable minds can disagree about the most effective method
for preventing voter fraud, but “the propriety of doing so is perfectly clear.”
Crawford, 553 U.S. at 196, 128 S. Ct. at 1619.
11
Over four decades ago, we recognized the State can lawfully regulate
absentee ballot requests to prevent fraud in Luse v. Wray, 254 N.W.2d 324(Iowa 1977) (en banc). In Luse, we examined the constitutionality of a
statute regulating absentee ballots involving residents or patients in health
care facilities or hospitals. Id. at 330. The plaintiffs challenged as
unconstitutional a law that required one representative from each of the
two major political parties to personally hand deliver an absentee ballot to
a resident or patient in a health care facility or hospital during the three
working days immediately prior to the election. Id. at 329–30. The process
required by the challenged statute thus outright banned county auditors
from mailing any absentee ballots to residents or patients of health care
facilities or hospitals.
In analyzing the plaintiffs’ facial challenge to the statute, we stated:
“[W]e have no doubt that under its power to regulate voting, the legislature
could impose the requirements of [the challenged law] on all absentee
voters.” Id. at 330 (emphasis added). We continued: “Thus the question
is whether the classification of patients separately, and the treatment of
them differently from other absentee voters, are valid provisions.” Id. We
considered whether the statute was subject to a rational basis or strict
scrutiny test and held it did not matter; the restrictions on absentee voting
in the statute “will survive application of either test.” Id. at 331. We noted
among the potential rationales supporting the statute the “prevention of
fraud.” Id.While closely connected to the state’s interest in preventing voter
fraud, even measures to protect public confidence in the electoral process
can, on their own, offer some justification for minimally burdensome
regulations. Crawford, 553 U.S. at 197, 128 S. Ct. at 1620. Voting
systems “cannot inspire public confidence if no safeguards exist to deter
12
or detect fraud.” Id. (quoting Comm’n on Fed. Election Reform, Building
Confidence in U.S. Elections § 2.5, at 18 (Sept. 2005),
https://www.eac.gov/assets/1/6/Exhibit%20M.PDF [https://perma.cc/
E9JB-G2GG]).
The absentee ballot request form is short and simple. It takes up
about half of a page; on the bottom half of the page are the instructions.
It states: “In order to receive an absentee ballot, a registered voter MUST
provide the following necessary information.” This statement is followed
by an explanation of the necessary information (or simple restatement of
it, since requests for “name,” “date of birth,” etc., require no explanation).
Both the form itself and the instructions explain that a “Voter Verification
Number” means an Iowa Driver’s License (or Non-Operator ID) Number or
the voter’s four-digit Voter PIN on the Iowa Voter Identification Card that’s
mailed to voters without a driver’s license or nonoperator identification.
The form states that any voter may request an Iowa Voter Identification
Card from the county auditor. The instructions repeat that statement in
bold type: “Any voter may request an Iowa Voter ID Card by contacting
their County Auditor’s Office.”
In completing the absentee ballot application form, voters are put on
notice that their county auditor might need to contact them about the
ballot request. The ballot application form itself spells out in clear
language the request, and reason, for asking for the voter’s phone and
email contact information. One line on the form (marked as “Important”)
requests the voter’s phone and email. Right next to this request, the voter
can check a box that states, “Do not add this information to my voter
record.” The instructions provide the why: “All voters are encouraged to
provide their phone number and/or email address in the event their
County Auditor needs to confirm any information on the request form.” It
13
thus alerts voters to the potential that the county auditor might need to
contact them about their ballot request form.
The plaintiffs submit no evidence of anyone who has actually been
thwarted from voting, let alone from voting absentee. The plaintiffs
provided the affidavit of one individual who wanted to request an absentee
ballot. She was currently missing her driver’s license but expected to have
a replacement driver’s license by September 17, before the commencement
of the absentee voting period. This affiant also stated that the Polk County
Auditor’s Office had declined to provide her with her voter ID number over
the phone. We too are puzzled by this bureaucratic error, but the affiant
does not indicate whether she made a second try. There is no reason to
believe that, as of today, this individual does not have either a driver’s
license number or a voter ID number needed to request an absentee ballot.
The plaintiffs suggest voters who have submitted an incorrect ballot
request form, but for whatever reason have not connected with the county
auditor about the missing or incorrect identification information, might be
confused and thus will not avail themselves of their right to vote early in
person or in person on Election Day. But voters can track on the Secretary
of State’s website the date their absentee ballot request was received by
their auditor, the date the auditor sent them a ballot, and the date the
auditor received back their voted ballot. See Iowa Sec’y of State, Track
Your Absentee Ballot, https://sos.iowa.gov/elections/
absenteeballotstatus/absentee/search (last visited Oct. 21, 2020). This
free tracking ability is available with an internet-connected computer or
smartphone, a name, and a birthdate. 1 This tracking feature is easy to
1Recentdata indicate that over eighty percent of adults in the United States own
a smartphone. See Pew Rsch. Ctr., Mobile Fact Sheet (June 12, 2019),
https://www.pewresearch.org/internet/fact-sheet/mobile/ [https://perma.cc/XGU4-
14
use. It compares favorably to many online “track my shipment” features
that Iowans frequently access when engaging in online shopping.
The plaintiffs have cited public information from the Iowa Secretary
of State’s website in their brief filed Friday, October 16, and we may take
judicial notice of data posted to this website. See, e.g., Ariz. Libertarian
Party v. Reagan, 798 F.3d 723, 727 n.3 (9th Cir. 2015) (taking judicial
notice of information posted on a governmental website in a case
challenging a voting statute); Green Party of Ark. v. Martin, 649 F.3d 675,
679 (8th Cir. 2011) (taking judicial notice of data on Arkansas Secretary
of State website); Arizonans for Second Chances, Rehab., & Pub. Safety v.
Hobbs, 471 P.3d 607, 614 (Ariz. 2020) (taking judicial notice of data on
the Secretary of State’s website in a case challenging a voting statute);
Gray v. Thomas-Barnes, 474 S.W.3d 876, 878 (Ark. 2015) (same). The
data shows that, through October 21, county auditors across the state
have received 842,459 ballot requests and mailed 829,375 ballots to
voters. Iowa Sec’y of State, Absentee Ballot Statistics November 3, 2020
General Election, [hereinafter IA SOS Absentee Ballot Statistics]
(last visited Oct. 21, 2020). That means that only 1.55% of requested
ballots have yet to be mailed. And since it takes some time to process a
ballot request anyway, we cannot say what portion of that 1.55% is
attributable to missing information that would trigger the voter contact
procedures of HF 2643, or simply a function of the normal processing
turnaround time for ballot requests.
But a closer look at the data reveals an even starker picture. Of the
13,084 requested ballots have yet to be mailed, 11,959 belong to just two
counties: Johnson and Woodbury. Id. That means these two counties
VXNB]. The same data indicates this rate is appreciably higher for eighteen to twenty-
nine-year-olds, with ninety-six percent owning smartphones. Id.15
account for 91.40% of unfulfilled requests. It’s not inconceivable the high
proportion of unfulfilled requests in these two counties is due to issues
associated with sending, and then needing to recall, thousands of
prepopulated ballot request forms because they were issued unlawfully.
See DSCC v. Pate, ___ N.W.2d ___ (providing background facts). If we
exclude these counties in the percentage-of-ballots-yet-to-be-mailed
calculation, the percentage of ballots yet to be mailed drops to
fifteen-hundredths of one percent (0.15%).
Further, with only four days before the absentee ballot request
deadline, the “tsunami” of absentee ballot requests that the plaintiffs’
expert predicted is more accurately a trickle. Day-over-day increases in
each of the last four business days totaled 17,496 (October 16), 21,282
(October 19), 20,059 (October 20), and 14,887 (October 21). IA SOS
Absentee Ballot Statistics. Instead of spectacular increases as the
deadline approaches as predicted by the plaintiffs’ expert, the actual data
shows daily decreases in ballot requests, with the most recent data
showing a twenty-five percent decrease day-over-day. Id. And the actual
percentage of yet-to-be-mailed ballots similarly decreased each day: 1.71%
(October 16), 1.65% (October 19), 1.57% (October 20), and 1.55%
(October 21). Id. These facts calling into question the plaintiffs’ expert’s
predictions highlight another reason that facial challenges are disfavored,
as such challenges “often rest on speculation.” Wash. State Grange, 552
U.S. at 450, 128 S. Ct. at 1191.
Respectfully, we believe the dissent confuses several points. The
dissent confuses the burden on the voter with the potential burden on
county auditors. Constitutional law is concerned only with the burden on
the voter. The burden on the voter, as we have explained, is simply to fill
out an absentee ballot request form correctly. If the voter fails to do that,
16
they still have several fallbacks under the statute: (1) to respond to a
county auditor’s follow-up communication, (2) to vote absentee in person,
or (3) to vote on election day. Courts weigh burdens on voters against the
state’s interests by looking at the whole electoral system. See Burdick, 504
U.S. at 439, 112 S. Ct. at 2066. Completing a ballot request form is the
relevant burden in this case, and under our precedent, it is not a
significant one. The evidence shows that hundreds of thousands of Iowa
voters have already met that burden and cast their ballots in this election.
We do not discount potential burdens on county auditors. The
auditors raised those concerns when HF 2643 was before the legislature.
However, those are not grounds for setting aside HF 2643 now that it has
been enacted into law. That some county auditors disagree with the state’s
required approach does not permit courts “to override the state’s judgment
about how public employees’ time should be allocated.” Luft v. Evers, 963
F.3d 665, 674 (7th Cir. 2020).
The dissent also confuses facts on the ground with the predictions
of a party’s retained expert. Both are evidence. It is well established that
courts take judicial notice of voting statistics from the secretary of state in
election law cases. See Green Party of Ark. v. Martin, 649 F.3d 675, 679
(8th Cir. 2011) (taking judicial notice of data on Arkansas Secretary of
State’s website). Here, those statistics actually come from state county
auditors and are reported to the secretary of state. Those facts show that
the predictions of the plaintiffs’ expert have not come true. In part, this
may be because this national expert does not understand how “absentee”
in-person voting works in Iowa. Voters who cast ballots “absentee”
through in-person early voting will have an in-person opportunity to
correct any errors in their absentee ballot application. We place more
stock in actual facts about the election (i.e., the absentee ballot request
17
form and the data being reported by county auditors) than the plaintiffs’
before-the-event predictions.
Additionally, the dissent’s repeated references to “front-end” and
“back-end” confuse what is really one verification method. If every single
front-end deficiency could be corrected in the back-end, the front-end
would be meaningless. Under the dissent’s view, a request form could
contain totally incorrect information in all respects (wrong birthdate, wrong
address, and wrong voter identification number) and the county auditor
would be under a legal mandate from our court to correct everything and
send out an absentee ballot. Or the form could contain only an applicant’s
name and nothing more (leaving all the other lines blank), and the auditor
would be required to attempt to complete the form without contacting the
named applicant and send out an absentee ballot.
What if the voter has moved and the I-Voters database no longer
contains the voter’s current address? Under the dissent’s view, the county
auditor must still send a ballot to the old address, instead of contacting
the voter to clear up any issue and confirm the correct address. Again,
under the dissent’s view, the front-end becomes irrelevant because the
auditor has to take over the voter’s job and fill in everything under the
back-end.
A district court’s decision to grant or deny an injunction request will
be overturned only if we find the district court abused the discretion it
possesses on these matters. Lewis Invs., Inc. v. City of Iowa City, 703
N.W.2d 180, 184 (Iowa 2005). While our constitutional analysis does not
entirely track the district court’s analysis, we affirm the ruling for the
reasons stated here.
18
III. The Plaintiffs’ Other Claims.
The plaintiffs also allege the statute violates the Iowa Constitution’s
equal protection clause. Iowa’s equal protection clause “is essentially a
direction that all persons similarly situated should be treated alike.”
Varnum v. Brien, 763 N.W.2d 862, 878 (Iowa 2009) (quoting Racing Ass’n
of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa 2004)). Under this line
of attack, the plaintiffs argue similarly situated voters will be treated
differently because the statute establishes no deadlines about how long a
county auditor may wait after emailing or calling a voter about missing
information before trying to contact the voter by mail.
The plaintiffs offer no evidence that HF 2643 was intended to treat
similarly situated voters differently. At some level, differences in auditor
practices are inevitable. Some auditors may prefer the email contact;
others the phone. In any event, variations in practices among county
auditors’ offices do not, without more, create an equal protection violation.
See In re Contest of Gen. Election, 767 N.W.2d 453, 465–66 (Minn. 2009)
(per curiam) (holding variations in absentee ballot procedures among local
jurisdictions did not violate equal protection). Furthermore, the plaintiffs’
injunction could lead to disparate treatment itself. Is the county auditor
allowed to correct any erroneous information, no matter how significant
the error? The plaintiffs’ equal protection claims show no likelihood of
success on the merits.
Finally, the plaintiffs allege the statute violates procedural due
process rights under the Iowa Constitution. “Procedural due process”
requires notice and an opportunity to be heard prior to depriving someone
of a right or interest. Bowers v. Polk Cnty. Bd. of Supervisors, 638 N.W.2d
682, 691 (Iowa 2002). The plaintiffs contend voting is a fundamental right
19
and that the statute will result in unnecessary delay that increases the
risk of disenfranchising voters.
This argument largely overlaps the discussion above, particularly as
it relates to the permissible balance between election security and access
to voting. But there are additional points to mention on the system’s
safeguards protecting the right to vote. Voters could request absentee
ballots up to 120 days prior to an election. Iowa Code § 53.2(1)(b). The
secretary of state’s office mailed an absentee ballot request form to every
registered voter in Iowa. See DSCC v. Pate, ___ N.W.2d at ___ (“Iowa is one
of only eleven states where the government mailed an absentee ballot
application to every registered voter.” (citing Nat’l Conf. of State
Legislatures, Absentee and Mail Voting Policies in Effect for the 2020
Election (Oct. 9, 2020)) 2). The ballot request form contains clear
instructions on how to complete it. County auditors are compelled, by the
very law challenged in this case, to contact voters when they receive an
insufficient form, as opposed to disregarding and taking no further action
on such forms. The absentee voting period began on October 5 and
continues through November 2. And setting aside absentee voting, in-
person early voting is also allowed during this same period. 3 On Election
Day itself, polls are open from 7 a.m. until 9 p.m. The plaintiffs face too
steep a climb on this record for showing a likelihood of success on the
2Available at https://www.ncsl.org/research/elections-and-campaigns/
absentee-and-mail-voting-policies-in-effect-for-the-2020-election-aspx
[https://perma.cc/4DFT-8DGJ].
3Iowa law characterizes this early in-person voting as “absentee voting” and the
voter technically casts an “absentee ballot.” Iowa Code §§ 53.10, .11. However, for
purposes of this case, it is fundamentally different from other absentee voting because
the applicant appears in person to request their absentee ballot and thus any deficiencies
in the absentee ballot application can be corrected on the spot by the applicant.
20
merits for their due process claim based on a risk that HF 2643 will
disenfranchise voters.
IV. Conclusion.
The United States Supreme Court has repeatedly warned that courts
“should ordinarily not alter the election rules on the eve of an election.”
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207
(2020) (per curiam). “Court orders affecting elections, especially
conflicting orders, can themselves result in voter confusion and
consequent incentive to remain away from the polls.” Purcell v. Gonzalez,
549 U.S. 1, 4–5, 127 S. Ct. 5, 7 (2006) (per curiam).
On this record, we again decline on the eve of this election to
invalidate the legislature’s statute providing additional election
safeguards. See DSCC v. Pate, ___ N.W.2d at ___. We affirm the district
court’s denial of the plaintiffs’ temporary injunction request.
AFFIRMED.
This opinion shall be published.
All justices concur except Oxley, J., who files a dissenting opinion
in which Christensen, C.J., and Appel, J. join.
21
22
#20–1249, LULAC v. Pate
OXLEY, Justice, (dissenting).
To read the majority opinion, one might forget we’re even in the
midst of a historic global pandemic. The majority dismisses the record
evidence not only about the pandemic and its effects on county auditors’
ability to keep up with record-breaking requests for absentee ballots—
requests made at the urging of the defendant that voting by mail is the
safest way to vote—it also dismisses the record evidence about the
significant number of ballot requests county auditors will receive with
missing or incorrect information. It focuses instead on the simplicity of
completing the form in the first place and then tracking the form through
the system, in other words, the front-end provisions at issue in our
Democratic Senatorial Campaign Committee v. Pate (DSCC v. Pate),
___ N.W.2d ___ (Iowa 2020) (per curiam), case.
But the majority misses the point. To begin with, this case is not
about the front-end process of filling out the form correctly. It is about the
back-end process of timely correcting the errors that clearly happen on a
fairly large scale and getting an absentee ballot back to the voter in time
to use it. The legislature has long provided a back-end process for fixing
inaccurate request forms but has now made that process much more
cumbersome and time-consuming as we approach a general election in
which the defendant predicts eighty percent of Iowans will vote absentee.
The majority does not address the record evidence that in these final days
when voters are allowed to request ballots, the new back-end process will
add at least seven days to the process of correcting incomplete or
inaccurate request forms. The burden on voters is this delay, which will
likely cause thousands of voters to not receive their ballot in time to use
it.
23
The majority dismisses any concern over delays by citing to statistics
from the Secretary of State’s website purportedly showing 1.55% of
requested ballots are currently waiting to be sent out, and even less if you
dismiss Johnson and Woodbury Counties. 4 But the seven-day additional
delay is premised on evidence in the record that nearly 30% of requests
for absentee ballots arrive in the last four days and therefore have not even
4And what do those numbers really tell us anyway? That the total number of
absentee ballots provided to voters is currently not far behind the total number of
absentee ballots requested says nothing about how long it took for auditors’ offices to
meet those requests. Nor does it say anything about how many of the yet-to-be-returned
ballots have been on hold while election officials attempt to contact the voter. Nor does
it say anything about whether auditors’ offices will be able to turn around the deluge of
requests that will surely hit in the final days leading up to October 24.
Separate from what the statistics don’t tell us is an accurate understanding of
what the statistics do tell us. First, it is not at all clear that deficient request forms are
even included in the total number of requests. It could very well be that counties do not
consider a request to be valid until it has contacted the voter and obtained all of the
correct information, so it is not at all clear that the requests at the heart of this case are
even represented in the statistics relied on by the majority. Second, it appears that the
reported numbers by at least some counties include all early voting method requests, not
just absentee ballot requests. While only a handful of counties appear to make such
statistics available, it appears that at least some counties are reporting all early voting
methods, not just absentee mail-in ballot requests. For example, Johnson County’s total
numbers include mail-in ballot requests, early in-person voting, satellite voting, and
email voting requests by military and overseas Iowans. While absentee mail-in ballots
account for seventy-seven percent of the total early voting requests, they account for
ninety-eight percent of the unreturned ballots. See Johnson Cnty. Auditor’s Off.,
November 3, 2020 General Election Early Voting Statistics,
https://www.johnsoncountyiowa.gov/auditor/returns/2020-11-absentee
Stats.htm [https://perma.cc/8QJF-86TP].
This point is supported by footnote 3 of the majority opinion, where it makes the
point that early in-person voting is considered “absentee voting” under Iowa law, but that
is fundamentally different from a mail-in absentee ballot because the applicant can
correct any mistakes when the applicant votes early in-person. The majority doesn’t
recognize the same point when it uses the Secretary of State’s data. In Johnson County,
15% of total requested early voting ballots were for early in-person voting, and 99.94% of
them had been returned. This shows the majority understates the percentage of
nonreturned mail-in absentee ballots. So the majority’s calculations are likely not
accurate in concluding that only 1.55% of absentee ballots (or .16% if you exclude
Johnson and Woodbury Counties under speculation that they caused their own problems
by sending prepopulated request forms) remain to be returned to voters. Given the
number of questions surrounding use of the raw data, the calculations certainly do not
justify using them to entirely disregard the record evidence.
24
been received yet. That county auditors might be keeping up for now really
doesn’t prove much. It is like relying on a pail to shovel water out of a boat
because it has worked so far, while watching as a tsunami wave
approaches the bow. The majority’s position rests on the calm before the
storm.
It is not enough to say this is just the flip side of the provision we
addressed in DSCC v. Pate. While the Code provisions address a similar
purpose of protecting against fraud and ensuring election integrity, that is
only one side of the scale we need to balance. The front-end and back-end
provisions impose significantly different burdens on Iowa voters’ ability to
actually receive an absentee ballot. It is that difference in burden that, in
my mind, tips the scale differently in this case than it did in DSCC v. Pate.
After carefully reviewing the evidence in the record about the
likelihood that thousands of Iowans will not receive their requested
absentee ballot in time to vote because of the cumbersome new process
put in place by the legislature during the heart of the pandemic, and
balancing that burden against the defendant’s mere incantation of
“integrity of the election system” and “voter fraud,” I conclude the plaintiffs
have shown a likelihood of success on the merits of their constitutional
challenge to the newly enacted legislation sufficient to entitle them to the
requested temporary injunction. I therefore respectfully dissent.
I. Factual Background.
Because the majority fails to discuss much of the record evidence, I
start with the factual background of how this case reached our court.
In March of this year, in the midst of the global COVID-19 pandemic,
Iowa Secretary of State Paul Pate recognized that “[t]he safest way to vote
will be by mail” and “encourage[d] Iowans to vote by mail in the June 2
primary to reduce the risk of spread of COVID-19.” Press Release,
25
Off. of the Iowa Sec’y of State, Secretary Pate to Mail Absentee Ballot
Request Form to Every Registered Voter (March 31, 2020). 5 To assist
Iowans in voting by mail, Pate mailed an absentee ballot request form to
every Iowan for the June 2020 primary election. Id. Voters heeded Pate’s
encouragement, and a record number of Iowans requested absentee
ballots for the June 2020 primary election.
To meet the demands of record numbers of absentee ballot requests
for the June primary, workers in auditors’ offices statewide worked
overtime and added additional staff. In Scott County, for example, staff
worked fourteen straight twelve-to-fourteen-hour workdays to meet the
high demand for absentee ballots. To process absentee ballot request
forms, staff verified the applications against information in the I-Voters
database before mailing an absentee ballot to the applicant. As has been
the practice for decades, staff used the I-Voters information to correct
incomplete or inaccurate request forms as long as there was sufficient
information from the request form to identify the applicant.
By all accounts, the June primary was successful. Nonetheless,
following the June primary, the Iowa legislature modified Iowa’s law
concerning absentee ballots by passing House File 2643 (HF 2643) on
June 14, effective July 1. See 2020 Iowa Acts ch. 1121. Previously, Iowa
Code section 53.2(4)(b) (2020) directed that election officials could use “the
best means available[ to] obtain the additional necessary information”
when an application was deficient. This had historically been
accomplished largely by using the I-Voters database.
However, the legislature modified this subsection to require election
officials to communicate directly with the applicant to obtain the missing
5Available at https://sos.iowa.gov/news/2020_03_31.html.
26
information before the official could mail the requested ballot.
2020 Iowa Acts ch. 1121, § 124 (to be codified at Iowa Code § 53.2(4)(b)
(2021)). Now, election officials 6 are required to attempt to contact the
registered voter by phone or email within twenty-four hours of receipt of a
flawed absentee ballot request. Id. If the applicant can’t be reached, the
official must notify the registered voter of the problem by mail and await a
response. Id. The new legislation expressly prohibits election officials from
“us[ing] [the I-Voters database] to obtain additional necessary
information.” Id. The Iowa State Association of County Auditors opposed
this change as unduly burdening county auditors’ ability to process
absentee ballot requests with no corresponding benefit.
The importance of absentee ballots has increased exponentially in
the midst of the COVID-19 pandemic, especially in Iowa. That the
pandemic’s effect on absentee ballots is the basis for the plaintiffs’ claims
is made clear by the twenty-seven paragraphs and an entire section of
their petition explaining how COVID-19 has exacerbated the burden
HF 2643 imposes on Iowa’s absentee voting system. Our state has drawn
national attention for its high per capita rates of COVID-19, including
provoking “dire warnings” from the CDC. Betsy Klein, Task Force Report
Shows Dire Warning to Iowa, the State with the Highest Case Rate this
Week, CNN (Sept. 1, 2020). 7 For a time, Iowa had the highest rate of new
6County auditors are the election officials with responsibility for processing
absentee ballot requests. See, e.g., Iowa Code § 53.2(1)(a) (“Any registered voter . . . may
. . . apply in person for an absentee ballot at the commissioner’s office or at any location
designated by the commissioner.”); id. § 53.2(1)(b) (“A registered voter may make written
application to the commissioner for an absentee ballot.”). Iowa Code section 39.3
identifies the commissioner is “the county commissioner of elections as defined in section
47.2.” Section 47.2 in turn declares “[t]he county auditor of each county is designated
as the county commissioner of elections in each county.” Id. § 47.2(1). I refer to “election
officials” and “county auditors” interchangeably.
7Available at https://edition.cnn.com/2020/09/01/politics/iowa-task-force-
report-coronavirus/index.html [https://perma.cc/GF4R-7UL3].
27
cases among all states, see id., and, as of October 21, Iowa has the seventh
highest rate of cases per 100,000 people. The pandemic shows no signs
of easing before the general election on November 3. Covid in the U.S.:
Latest Map and Case Count, N.Y. Times (last updated Oct. 19, 2020). 8
Under Iowa law, an absentee ballot request form must be received
by the county auditor ten days before the election. Iowa Code § 53.2(1)(b).
With the general election on November 3, all absentee ballot request forms
must be received at county auditors’ offices by 5 p.m. on October 24.
See id. The county auditor must then process the application and return
it to the voter in time for the voter to get the ballot postmarked by Monday,
November 2, see Iowa Code § 53.17(2), or delivered to the county auditor’s
office by the time polls close on November 3, see Iowa Code § 53.17(1)(a).
The Secretary of State predicts that eighty percent of Iowa voters will
vote by absentee ballot. See James Lynch, Pate Predicts 80% Absentee
Voting in November, Courier (Sept. 10, 2020). 9 “[T]he private interest of a
voter being able to vote absentee is weighty, particularly in the
circumstances present with this pandemic.” Democracy N.C. v. N.C. State
Bd. of Elections, ___ F. Supp. 3d ___, ___, 2020 WL 4484063, at *54
(M.D.N.C. Aug. 4, 2020) (citation omitted). Having made absentee voting
available to all Iowa voters thirty years ago, and now encouraging voters
to utilize absentee voting as the “safest way to vote,” the state has an
obligation to ensure that method of voting is actually available to its
citizens. Cf. Martin v. Kemp, 341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018)
(“Courts around the country have recognized that ‘[w]hile it is true that
8Available at https://www.nytimes.com/interactive/2020/us/coronavirus-us-
cases.html#states [https://perma.cc/7YY2-65TY].
9Available at https://wcfcourier.com/news/local/govt-and-
politics/patepredicts-80-absentee-voting-innovember/article_52e175a1-832b-57fb-
8a50-36dbbd3bc668.html [https://perma.cc/F4HK-NJVN].
28
absentee voting is a privilege and a convenience to voters, this does not
grant the state the latitude to deprive citizens of due process with respect
to the exercise of this privilege.’ ” (alteration in original) (quoting Raetzel v.
Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz.
1990))), appeal dismissed sub nom. Martin v. Sec’y of State of Ga.,
No. 18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018). “[O]nce
the state creates an absentee voting regime, they ‘must administer it in
accordance with the Constitution.’ ” Id. (quoting Zessar v. Helander,
No. 05 C 1917, 2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006)).
That the majority reads the Secretary of State’s absentee ballot
statistics to show that most counties appear to currently be keeping up
with getting absentee ballot requests out to voters does not minimize the
burden identified in the record. Historically, over forty percent of voters in
the general election request their absentee ballot in the last ten days prior
to the deadline for requesting them; almost thirty percent in the final four
days. The deluge is just getting started. Only time will tell if they will keep
up.
With this background, I turn to the plaintiffs’ claims that the July 1
amendments to section 53.2(4)(b) unduly burden Iowan’s constitutional
rights.
II. Standard of Review.
The majority does not dispute that the district court abused its
discretion when it denied the temporary injunction by using the wrong
legal standard. See City of Des Moines v. Ogden, 909 N.W.2d 417, 423
(Iowa 2018) (“A district court abuses its discretion” by issuing a decision
that “is based on an erroneous application of the law.”) (quoting State v.
Hill, 878 N.W.2d 269, 272 (Iowa 2016)). While the majority doesn’t put
much stock in the differences required by the appropriate standard of
29
review, the district court did, beginning its order by explaining, “In this
case, the standard by which the court reviews the plaintiffs’ claims makes
a large difference as to outcome.”
“A temporary injunction is a preventive remedy to maintain the
status quo of the parties prior to final judgment and to protect the subject
of the litigation.” State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011)
(quoting Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 184
(Iowa 2005)). The subject of the litigation is the November election, and
the status quo for the plaintiffs’ challenge is the state of affairs prior to the
July 1 enactment of HF 2643. In deciding whether to enter a temporary
injunction, courts consider the “circumstances confronting the parties and
balance the harm that a temporary injunction may prevent against the
harm that may result from its issuance.” Max 100 L.C. v. Iowa Realty Co.,
621 N.W.2d 178, 181 (Iowa 2001) (en banc) (quoting Kleman v. Charles
City Police Dep’t, 373 N.W.2d 90, 96 (Iowa 1985)).
The majority appears to ignore the circumstances confronting the
plaintiffs, namely the significant effect COVID-19 plays in their challenge
to the statute, by asserting the plaintiffs ask us to declare section
53.2(4)(b) facially unconstitutional. 10 The majority then stands behind the
heightened showing needed to declare a statute unconstitutional in all its
applications. While plaintiffs do assert the back-end provisions of section
53.2(4)(b) are unduly burdensome as written, they also assert those
burdens are exacerbated by the specific circumstances of the new
legislation’s effect on this particular election and in these unchartered
times. They clearly rely on the circumstances of the pandemic to support
their challenge. As such, this is not the type of facial challenge that allows
10This is the defendant’s characterization of the challenge, not the plaintiffs’.
30
the majority to ignore what is going on around them. Cf. Tex. Democratic
Party v. Abbott, ___ F.3d ___, ___, 2020 WL 6127049, at *4
(5th Cir. Oct. 14, 2020) (discussing whether “plaintiffs withdrew their
reliance on the pandemic and are instead making a facial challenge,”
ultimately holding the district court erred in applying strict scrutiny to an
equal protection challenge under the Twenty-Sixth Amendment) (emphasis
added); Pa. Democratic Party v. Boockvar, ___ A.3d ___, ___,
2020 WL 5554644, at *16 (Pa. Sept. 17, 2020) (considering challenge to
“application of the statutory language to the facts of the current
unprecedented situation” as raising an as-applied rather than facial
challenge to Pennsylvania’s requirement that mail-in ballots be received
by Election Day in light of the pandemic and mailing delays), stay denied
mem., ___ S. Ct. ___, 2020 WL 6128194 (Oct. 19, 2020).
I believe the majority errs when it ignores the significance of the
pandemic under the guise of considering a facial challenge. This case does
not require us to “formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied,” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 450,
128 S. Ct. 1184, 1191 (2008) (quoting Ashwander v. Tenn. Valley Auth.,
297 U.S. 288, 346–47, 56 S. Ct. 466, 483 (1936)
(Brandeis, J., concurring)), as suggested by the majority, but only to the
“precise facts” involved in this case—which include the effects of the
pandemic.
III. The Plaintiffs Are Likely to Succeed on Their Claim that
Section 124 of HF 2643 Unconstitutionally Burdens Iowans’ Right to
Vote During the COVID-19 Pandemic.
I respect that policy decisions are the bailiwick of the elected
branches of our state government. But the fact that election procedures
31
are left to state elected officials does not abdicate our responsibility, as the
coequal third branch, to “jealously guard[]” Iowa citizens’ constitutional
rights, including their fundamental right to vote. See DSCC v. Pate,
___ N.W.2d at ___.
Under the Anderson–Burdick balancing approach, “court[s]
evaluating a constitutional challenge to an election regulation weigh the
asserted injury to the right to vote against the ‘precise interests put
forward by the State as justifications for the burden imposed by its rule,’ ”
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190, 128 S. Ct. 1610,
1616 (2008) (plurality opinion) (quoting Burdick v. Takushi,
504 U.S. 428, 434, 112 S. Ct. 2059, 2063 (1992)), considering “the extent
to which those interests make it necessary to burden the plaintiff’s rights.”
Burdick, 504 U.S. at 434, 112 S. Ct. at 2063 (quoting Anderson v.
Celebrezze, 460 U.S. 780, 789, 103 S. Ct. 1564, 1570 (1983)). This is
necessarily different from a rational basis test. While some harms may be
insignificant enough that a rational basis type justification will outweigh
the burden using the sliding scale approach, we must first consider the
burden imposed before we can determine how much heft is required of the
justification to counterbalance that burden. This is why courts do not
“apply[] any ‘litmus test’ that would neatly separate valid from invalid
restrictions” but instead “must identify and evaluate the interests put
forward by the State as justifications for the burden imposed by its rule,
and then make the ‘hard judgment’ that our adversary system demands.”
Crawford, 553 U.S. at 190, 128 S. Ct. at 1616. 11
11It is worth noting that a careful count of votes in Crawford supports use of the
Anderson–Burdick balancing test to consider the effect of the burden on a subgroup of
voters rather than only considering the effect on all voters, as the majority does. In
Crawford, “a majority of the Supreme Court agreed that in so doing, courts may consider
not only a given law’s impact on the electorate in general, but also its impact on
subgroups, for whom the burden, when considered in context, may be more severe.” Pub.
32
Here is how I weigh the burdens imposed against the state’s
identified interests.
A. Prevalence of Incomplete or Incorrect Absentee Ballot
Request Forms. The crux of this dispute is the method by which a county
auditor may correct deficiencies or missing information in absentee ballot
request forms. Section 53.2(4)(a) requires an applicant to provide their
name and signature, birthdate, address, and “voter verification number”
when requesting an absentee ballot. Iowa Code § 53.2(4)(a). As explained
by the President of the Iowa State Association of County Auditors,
speaking on behalf of that association and with the approval of its
executive board,
[s]ome voters will invariably omit information from their
Request Form, particularly the Voter ID field, which requires
the voter to fill in their driver’s license / non-operator ID
number or their four-digit Voter PIN. This is especially true
during a presidential election, which tends to draw voters less
experienced with the absentee balloting process, including
younger voters, and thus may be more likely to provide
incomplete request forms.
County auditors who submitted declarations in support of the
plaintiffs’ case confirm the prevalence of incorrect or incomplete request
forms. Woodbury County Auditor Patrick Gill explained that, in his
experience, “many voters omit their Absentee ID Number[] or get it wrong.”
Gill noted that in a recent special election, over 18% of request forms left
the voter ID blank, and in the June 2020 primary election, 6.5% of request
Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 n.2 (9th Cir. 2016) (explaining
the plurality opinion in Crawford recognized that election laws may disproportionately
burden certain persons, but could not quantify that burden based on the evidence
presented while Justice Souter’s dissent found the evidence sufficient to identify
disfavored subgroups)); see also Ohio State Conf. of NAACP, 768 F.3d at 544 (“[A] majority
of the justices in Crawford either did not expressly reject or in fact endorsed the idea that
a burden on only a subgroup of voters could trigger balancing review under Anderson–
Burdick.”).
33
forms mere missing the absentee ID number. Hardin County Auditor
Jessica Lara explained that Hardin County received a record number of
absentee ballot request forms for the June 2020 primary election, many of
which had missing or incorrect voter ID numbers. Johnson County
Auditor Travis Weipert explained that his “office receives request forms
with missing information daily during election season.”
The record supports the plaintiffs’ position that submitting
incomplete or incorrect information in seeking an absentee ballot is a
prevalent problem during elections. The defendant does not dispute this
evidence. The majority nonetheless rejects it based on its own view that
the form is “short and simple.”
B. Curing the Incomplete or Incorrect Request Forms. Prior to
HF 2463, auditors’ offices could use the “best means available” to correct
incomplete or missing information on an absentee ballot request form.
Iowa Code § 53.2(4)(b). For decades, the “best means available” included
using the I-Voters database to supply the missing information, as long as
the request form had sufficient information to otherwise identify the voter.
The I-Voters database is a centralized statewide voter database developed
under the Help America Vote Act of 2002. The database includes stringent
security protections that secure the integrity of its information. Additions
and changes to the database are continuously monitored, with weekly
reports that detect any irregularities. According to Secretary Pate’s office,
“I-Voters is secure, and [his office] work[s] every day to ensure it remains
secure.” Prior to the enactment of HF 2643, the Iowa Secretary of State’s
Office received an award in 2019 for Iowa’s efforts to promote voter
security. The defendant does not dispute the accuracy or security of the
information in the database.
34
When an election official receives an absentee ballot request form,
they verify the information required under section 53.2(4)(a) by comparing
it to the I-Voters database. Previously, when a request form had missing
or inaccurate information, the election official could correct it through the
I-Voters database as they verified the remaining information from the
application.
The record includes evidence of the effectiveness of this method of
curing defects in the request forms. Hardin County Auditor Jessica Lara
testified that during the June 2020 primary election, when her office was
inundated with a record number of absentee ballot request forms, the
I-Voters database allowed her staff to look up the missing information and
timely mail out ballots. Without the database, “contacting those voters
individually would have been almost impossible,” given the inundation of
requests. She observed that, if the number of absentee ballot requests for
the general election is anything like the primary election, her “office simply
will not be able to contact all voters who omitted information on their
absentee ballot requests, timely obtain the missing information from the
voters individually, and then mail out ballots.” Lara attested to having
difficulty finding and training temporary workers for the June 2020
primary election and doubting her ability to find and train sufficient
workers for the general election, particularly given the lack of funds to
employ enough anticipated temporary workers to meet the requirements
of HF 2643.
Additionally, Johnson County Auditor Travis Weipert explained that
his “office receives Request Forms with missing information daily during
election season” and sending letters rather than using the I-Voters
database during the June 2020 primary election “would have taken at
least 10 times longer to process the requests” and would have caused his
35
office to spend its limited funds on mailing letters to thousands of voters
instead of other uses of those funds.
The defendant does not dispute this evidence; the majority ignores
it.
C. Burden Imposed by New Back-End Procedures. As of July 1,
county auditors must now contact the applicant by phone or email,
assuming such information is available, or by letter, before any
inaccuracies can be corrected and the ballot mailed to the applicant. In
the abstract, requiring the county auditor to contact the applicant to
supply missing or incorrect information may not appear to be much of a
burden. Yet, “[h]owever slight that burden may appear, . . . it must be
justified by relevant and legitimate state interests ‘sufficiently weighty to
justify the limitation.’ ” Crawford, 553 U.S. at 191, 128 S. Ct. at 1616
(quoting Norman v. Reed, 502 U.S. 279, 288–89, 112 S. Ct. 698, 705
(1992)).
Further, a proper assessment of the burden imposed by the new
back-end provisions requires consideration of the context in which the
burden arises. See Ne. Ohio Coal. for the Homeless v. Husted,
837 F.3d 612, 633 (6th Cir. 2016) (concluding Ohio’s requirement for
exact match of address and birthdate “collapses under scrutiny” when
“none of the ‘precise interests put forward by’ Ohio justifies it”
(quoting Burdick, 504 U.S. at 434, 112 S. Ct. at 2063)); see also
Pa. Democratic Party, ___ A.3d at ___, 2020 WL 5554644, at *17 (“[T]he
struggles of our most populous counties to avoid disenfranchising voters
while processing the overwhelming number of pandemic-fueled mail-in
ballot applications during the 2020 primary demonstrates that orderly and
efficient election processes are essential to safeguarding the right to vote.”);
cf. League of Women Voters of Va., ___ F. Supp. 3d ___, ___,
36
2020 WL 2158249, at *8 (W.D. Va. May 5, 2020) (“In ordinary times,
Virginia’s witness signature requirement may not be a significant burden
on the right to vote. But these are not ordinary times. In our current era
of social distancing—in which not just Virginians, but all Americans, have
been instructed to maintain a minimum of six feet from those outside their
household—the burden is substantial for a substantial and discrete class
of Virginia’s electorate.”).
Professor Eitan Hersh, an expert on United States elections,
explained that the key impact of HF 2643 is the additional time it adds for
processing absentee ballot requests. Iowans are allowed to request an
absentee ballot within ten days of the election and must either return the
ballot by mail postmarked the day before the election or deliver it to the
auditor’s office by close of voting on Election Day. Prior to HF 2643, when
county auditors were permitted to access the I-Voters database and fill in
missing information, in a best-case scenario a voter who submitted a
request form with missing information would have received an absentee
ballot in approximately four days. However, after the changes to HF 2643,
the same process would take seven additional days, such that the voter
would—in the best-case scenario—instead receive the ballot in eleven
days.
According to Professor Hersh, under the new back-end
requirements, a voter who inadvertently makes an error or omission on
her request form and submits the request even four days earlier than the
allowed ten-day period leading up to the election will likely not receive the
absentee ballot in sufficient time to use it to vote. This is a significant
burden on voters. See, e.g., Pa. Democratic Party, ___ A.3d at ___,
2020 WL 5554644, at *18 (extending received-by date by three days for
the return of absentee ballots, explaining: “The Legislature enacted an
37
extremely condensed timeline, providing only seven days between the last
date to request a mail-in ballot and the last day to return a completed
ballot. While it may be feasible under normal conditions, it will
unquestionably fail under the strain of COVID-19 and the 2020
Presidential Election, resulting in the disenfranchisement of voters.”).
How many people are we talking about? According to Professor
Hersh’s analysis, given the number of people who do not provide phone
contact information with their request form, coupled with the number of
people who do not answer a call from an unknown phone number, ninety
percent of applicants who submit a deficient request form will not be
reachable by phone. Thus, the vast majority of applicants who submit
incomplete or inaccurate information will need to be contacted by mail.
This weeklong delay could mean the difference in a voter receiving a
ballot in time to use it or not. Professor Hersh estimates 29.7% of voters
who request an absentee ballot will do so within four days of the deadline,
meaning approximately 369,706 people fall within the window of not
receiving their ballot in time to use it if they submit the request with an
error (assuming no other delays in the process).
If the same approximate number of voters fill out their request forms
incorrectly for the general election as did for the primary election, between
11,100 and 33,800 Iowans who attempt to request an absentee ballot may
not receive it in time to vote in the general election. Moreover, the record
suggests the frequency of missing or inaccurate information provided by
voters will only increase for the general election. General elections draw
more voters in general, including more young and inexperienced voters.
Not only are those voters more likely to be unfamiliar with the process and
therefore more likely to fail to fill out a request form perfectly, they are also
38
more likely to be unreachable by phone to resolve errors in the request
forms. Importantly, the defendant does not dispute these observations.
The majority rejects Professor Hersh’s projections based on their
own calculation of purportedly current outstanding ballot requests and
their conclusion that “the trend in ballot requests has flattened.”
This self-declared flattening is not only not supported by the cited facts,
it ignores the historical evidence that approximately thirty percent of the
requests are yet to come in these final four days—a trend that appears to
be right on track. 12
It is one thing to take judicial notice of “official information posted
on a governmental website, the accuracy of which is undisputed,” Ariz.
Libertarian Party v. Reagan, 798 F.3d 723, 727 n.3 (9th Cir. 2015)
(emphasis added) (quoting Dudum v. Arntz, 640 F.3d 1098, 1101 n.6 (9th
Cir. 2011)) (taking judicial notice of the options available for individuals
seeking to register to vote); see also Arizonans for Second Chances, Rehab.,
& Pub. Safety v. Hobbs, 471 P.3d 607, 614 (Ariz. 2020) (taking judicial
notice of Arizona Secretary of State’s website to identify the number of
signatures needed to place an initiative on the upcoming ballot), or of
historical data from previous election results, see Green Party of Ark. v.
Martin, 649 F.3d 675, 679 (8th Cir. 2011) (citing statistics from Arkansas
Secretary of State to explain how the Green Party failed to maintain its
12According to the numbers identified by the majority, there was a 21.6% increase
(17,496 to 21,282) in requests reported between Friday and Monday morning, a 5.7%
decrease (21,282 to 20,059) reported between Monday and Tuesday morning, and a
25.7% decrease (20,059 to 14,887) reported between Tuesday and Wednesday morning.
This three-day fluctuation does not support the conclusion that ballot requests have
flattened, or more importantly, that they will remain flattened. The next four days will
tell us if the majority’s prediction is correct. For the sake of voters making requests in
these final days, I hope the majority is correct. But it would appear that it will not be.
Professor Hersh’s estimate of 29.1% in the final four days seems to be on target.
Assuming the majority’s number is correct and 842,459 absentee ballots have been
requested as of October 20—four days before the deadline—that leaves 29.8% of the
defendant’s estimated 1.2 million absentee requests yet to come in.
39
status as a political party based on the minimal votes its candidates
received in prior elections); Gray v. Thomas-Barnes, 474 S.W.3d 876, 878
(Ark. 2015) (taking “judicial notice of election results” to identify the
defendant, who was serving as the current mayor “as a result of having
been duly elected in the November 25, 2014 run-off election” (emphasis
added)). It is quite another to use daily-changing statistics from the Iowa
Secretary of State’s website to create factual disputes with evidence in the
record for purposes of then rejecting that evidence. I am not convinced by
the majority’s calculations that numerous voters will not receive their
absentee ballots in time to use them.
D. State’s Interest at Stake. Against the significant—and
undisputed—evidence that absentee voters frequently submit incomplete
or inaccurate request forms close to the deadline and that the new back-
end procedures will cause delay and put thousands of Iowans at risk of
not receiving their absentee ballot in time to vote, the defendant has offered
no evidence that the absentee ballot application process is prone to
fraudulent misuse. The only evidence in the record is to the contrary,
including Johnson County Auditor Travis Weipert’s observation that he is
unaware of any incident of absentee-ballot-related election fraud in
Johnson County during his eight year tenure and the President of the
State Association of County Auditor’s declaration that the back-end
changes do nothing to further that interest while significantly hampering
auditors’ ability to get absentee ballots to voters in time to be of any use.
The state’s vague justification of protecting the integrity of the election
against fraud is undermined by the record evidence. See Thomas v.
Andino, ___ F. Supp. 3d ___, ___, 2020 WL 2617329, at *19–21
(D.S.C. May 25, 2020) (finding the government’s lack of evidence of voter
fraud in South Carolina, other than fleeting mentions, combined with the
40
South Carolina Elections Commissions Director’s letter stating that the
witness requirement offered no benefit, undermined the strength of the
state’s interest in preventing voter fraud). Rather, the defendant relies on
his contention that absentee voting does not implicate the fundamental
right to vote, such that rational basis review applies to the plaintiffs’
challenges.
The defendant’s justification for changing the correction process
relies on nothing more than the mere incantation of voter fraud. The
state’s interest is, at best, theoretical only and, even then, very slight on
the record developed below. In an Anderson–Burdick analysis, that
interest weighs very lightly on the state’s interest side of the scale.
See, e.g., Fish v. Schwab, 957 F.3d 1105, 1133 (10th Cir. 2020)
(noting that the state, when asserting voter fraud, must produce evidence
“that such an interest made it necessary to burden voters’ rights”);
Middleton v. Andino, ___ F. Supp. 3d ___, ___, 2020 WL 5591590, at *31
(D.S.C. Sept. 18, 2020) (“But courts are not required to blindly accept a
state’s assertion that its interests are enough to outweigh a burden . . . .
[T]he sole evidence of the state’s purported ‘important law-enforcement
investigatory function’ is the short declaration of Lieutenant Logan. Yet
the court is not required to take the state’s conclusory assertions at face
value simply because one veteran law enforcement officer describes the
Witness Requirement as providing a ‘significant’ lead in fraud
investigations.” (Citations omitted.)); Thomas, ___ F. Supp. 3d at ___,
2020 WL 2617329, at *19–21, (quoting Fish’s rationale, the court found
the state “ha[d] not offered any evidence of voter fraud in South Carolina
other than SCEC’s fleeting mention, during the May 15, 2020 hearing, of
a voter-buying scandal from the 1980s” (footnote omitted)); cf. Democracy
N.C., ___ F. Supp. 3d at ___, 2020 WL 4484063, at *35–36 (weighing voter
41
witness requirement for absentee ballots under Anderson–Burdick analysis
and distinguishing Thomas v. Andino based on evidence that
“North Carolina experienced a serious case of voter fraud involving
absentee ballots in the 2016 General Election with the Dowless Scheme”
such that its “interest in preventing voter fraud is therefore not illusory or
speculative”).
While the majority cites Crawford as holding broadly that a state’s
interest in protecting the integrity of elections and preventing voter fraud
are sufficient to support its voter identification law, the Crawford Court
considered much more than a mere incantation of voter fraud than the
defendant provides here. The Court considered specific evidence in the
record to support Indiana’s photo identification requirement, including
evidence that Indiana’s voter rolls were inflated as much as 41%, the voter
registration totals in nineteen of Indiana’s ninety-two counties exceeded
100% of their voting-age population, Indiana had “an unusually inflated
list of registered voters,” and Indiana had experience with fraudulent
voting in the 2003 Democratic primary for East Chicago mayor. Crawford,
553 U.S. at 192, 195–96, 128 S. Ct. at 1617, 1619–20. Only after
considering these specific facts did the Supreme Court conclude that
Indiana’s “interest in counting only the votes of eligible voters,” coupled
with “the interest in orderly administration and accurate recordkeeping
provides a sufficient justification for carefully identifying all voters
participating in the election process” through its photo identification
requirement. Id. at 196, 128 S. Ct. at 1619. In comparison, the
defendant’s showing to justify changing the back-end correction
procedures in section 53.2(4)(b) is utterly lacking.
E. Our Resolution in DSCC v. Pate Does Not Preclude a Different
Outcome. Much of the defendant’s argument and the majority’s
42
reasoning focus on the front-end provisions of amended section 53.2(4)(a),
which require the applicant to provide certain identifying information
before receiving an absentee ballot by mail. See 2020 Iowa Acts ch. 1121,
§ 123 (to be codified at Iowa Code § 53.2(4)(a) (2021)). While we concluded
that the front-end provisions fit within the state’s legitimate interests
without unduly burdening voter interests in DSCC v. Pate,
___ N.W.2d at ___, we are focused here on the back-end provisions
addressing the process for correcting deficiencies in a request form once it
is submitted to a county auditor. See 2020 Iowa Acts ch. 1121, § 124
(to be codified at Iowa Code § 53.2(4)(b) (2021)). We must address each
regulations’ burdens and justifications. See Crawford, 553 U.S. at 190,
128 S. Ct. at 1616 (holding courts do not “apply[] any ‘litmus test’ that
would neatly separate valid from invalid restrictions” but instead “must
identify and evaluate the interests put forward by the State as
justifications for the burden imposed by its rule, and then make the ‘hard
judgment’ that our adversary system demands”).
As explained above, the plaintiffs have identified significant burdens
on the ability of absentee voters to receive a timely ballot. The difference
between the two cases is in the harm against which the state’s interest
must be weighed. In DSCC v. Pate, the plaintiffs challenged the denial of
a request form with the identifying information prepopulated. The claimed
harm stemmed largely from the fact that three county auditors sent
prepopulated forms despite a directive not to, and the order directing them
to contact those voters would result in confusion. DSCC v. Pate,
___ N.W.2d at ___. That harm arose not from the challenged legislation
but from unauthorized actions by county auditors.
Here, the plaintiffs have presented evidence of significant harm
stemming directly from the back-end procedures, the resulting delay, and
43
the likelihood that many voters will not receive their ballot. Against this
heightened showing of harm made by plaintiffs in this case, the defendant
presented no evidence of fraud to support the legislative change, choosing
instead to rely on their rational-basis-level justification. The record is
devoid of any suggestion that election integrity or voter fraud is, or has
been, an issue. That the justification for the front-end provisions met the
lesser burdens involved in DSCC v. Pate says nothing of whether the
minimal justification offered for the back-end provisions meets the
heightened burdens identified in this case.
F. The Back-End Changes in Section 124 of HF 2643 Impose A
Different Burden Than the Front-End Provisions. The majority asserts
as a further justification that the back-end provisions are needed to
support the front-end provisions we upheld in DSCC v. Pate as a single-
verification method. The front-end requirement for the applicant to
provide their name, address, birthdate, and voter identification number
“[a]rguably . . . help[ed] ensure that the person submitting the request is
the actual voter,” particularly when the state mailed an absentee ballot
request form to every registered voter in the state. DSCC v. Pate, ___
N.W.2d at ___. Requiring the person signing the request form to provide
the identifying information “arguably” serves that purpose, when such
information would not be known by someone attempting to obtain another
person’s absentee ballot by submitting a false request form. Notably, to
receive an absentee ballot, a voter must not only provide the requested
information, but the voter must sign the request form under penalty of
perjury and face criminal charges for forging another’s signature on a
ballot request form.
As addressed above, the back-end provisions provided by the
legislature to correct errors in the front-end process burdens voting
44
because of the inherent delays it creates for a voter to receive an absentee
ballot. That the direct burden is placed on the county auditors’ offices
does not negate the burden imposed on the voter waiting to receive their
absentee ballot. See, e.g., Pa. Democratic Party, ___ A.3d at ___, 2020 WL
5554644, at *17 (“[T]he struggles of our most populous counties to avoid
disenfranchising voters while processing the overwhelming number of
pandemic-fueled mail-in ballot applications during the 2020 Primary
demonstrates that orderly and efficient election processes are essential to
safeguarding the right to vote.”).
Additionally, the majority’s claim that the front-end process is
meaningless without the back-end corrections ignores the record evidence
that county auditors use the I-Voters database to make corrections only
when the application contains sufficient other identifying information to
ensure it is the correct person. The evidence shows the most common
errors are transposed numbers in birthdates and missing voter ID
numbers. This leaves sufficient other identifying information completed
by the applicant to efficiently, and accurately, use the I-Voters database
as it has been used for decades. The majority’s list of imagined concerns
does not negate this evidence.
Finally, the majority fails to address that the back-end correction
procedures required by the legislation are ineffective in furthering that
same general goal, as recognized by the county auditors who use the
system. An applicant for an absentee ballot who does not have access to
their voter identification number may call the county auditor and receive
the number over the phone by simply verifying two identifying facts about
the applicant, including the applicant’s birthdate, last four digits of their
social security number, residential or mailing address, or middle name.
See Iowa Code § 53.2(4)(d). These are facts the county auditor would know
45
only by accessing the I-Voters database. So a county auditor can use the
I-Voters database to provide a voter their voter ID number over the phone
if the voter verifies two pieces of identifying information from the I-Voters
database, but the county auditor cannot use that same I-Voters database
to correct a missing or inaccurate voter ID number from a written request
form that contains that same identifying information.
As Professor Hersh recognized, this process completely nullifies the
effectiveness of the back-end procedures to protect against absentee ballot
identification fraud, particularly in light of the front-end changes
precluding use of prepopulated application forms. Whereas the
prepopulated forms did provide two of the pieces of information that would
have allowed anyone who had possession of the request form to call and
obtain another person’s voter ID number, the front-end changes took care
of that. Now, a person in possession of another person’s application form
would not be informed of anything other than the person’s name and the
mailing address used to mail the application form, which is insufficient to
satisfy the requirements for obtaining the voter identification number
through the section 53.2(4)(d) process. See Iowa Code § 53.2(4)(d).
Coupled with the fact that an applicant can call the auditor’s office and
receive the missing information over the phone by providing the same
information included on the request form, the cumbersome
communication scheme does little to forward the vague justification
advanced by the state.
G. Balancing Under Anderson–Burdick. This case really comes
down to whether the state’s hollow justification for imposing a more
cumbersome process for curing defects in absentee ballot requests justifies
the resulting burden on voters’ rights, particularly when considered in the
midst of the COVID-19 pandemic. As I balance the competing concerns in
46
light of the evidence presented, I do not believe it does. See, e.g., Ne. Ohio
Coal. for the Homeless, 837 F.3d at 632 (recognizing hundreds of
“identifiable voters may be disenfranchised based only on a technicality”
and holding that while the burden of requiring exact compliance with
address and birthdate fields was slight, none of the “precise interests” of
the state justified the burden (second quoting Burdick, 504 U.S. at 434,
112 S. Ct. at 2063)); see also Ohio State Conf. of NAACP v. Husted,
768 F.3d 524, 541 (6th Cir. 2014) (recognizing under Anderson–Burdick
that a challenged law may be unconstitutional even if it “does not
absolutely prohibit early voters from voting,” if the “evidence in the record”
shows “that the plaintiffs’ ‘ability to cast a ballot is impeded by [the state’s]
statutory scheme.’ ”) (first and third quoting Obama for Am. v. Husted,
697 F.3d 423, 433 (6th Cir. 2012), second quoting id. at 431), vacated on
other grounds, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014).
Having determined the plaintiffs have shown a likelihood of success
on the merits, I conclude the plaintiffs are entitled to a temporary
injunction. The plaintiffs have established HF 2643 invades Iowans’
fundamental right to vote by placing a burden on that right without a
commensurate justification for that burden. Substantial injury will result
because tens of thousands of Iowans will likely no longer be able to cast
their votes safely as a result of HF 2643. Additionally, enjoining the
Secretary of State from enforcing HF 2643 is the only way to adequately
protect the rights placed at risk.
IV. Nonissues.
Two final points. I reject the argument that we would be creating
more confusion than we would be alleviating. The process at issue involves
the internal, or back-end, process used by county auditors to correct
incomplete or inaccurate absentee ballot request forms. Under the prior
47
process, a county auditor who received a deficient request form could
correct the error internally if they had sufficient information to identify the
individual in the I-Voters database. The county auditor could then mail
the ballot to the applicant, who would have been unaware of the
deficiencies. Under the new process, the county auditor must contact the
applicant, via phone, email, or letter, to obtain the missing or inaccurate
information before the auditor can mail the ballot to the applicant. The
relief requested by the plaintiffs would return the process to the prior
internal process, such that no voters would be aware of the corrections
made.
I also reject the majority’s position that we should not change
election rules this close to the election. To the extent the Purcell principles,
see Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S. Ct. 5, 7–8 (2006), even
apply to state courts addressing challenges to their state’s election laws
under their own constitutions, cf. DSCC v. Pate, ___ N.W. 2d ___
(Appel, J., concurring specially), granting the requested injunction under
the unique circumstances of this case would actually lessen confusion and
lessen administrative burdens on election officials, both without affecting
any voters’ rights. Cf. Purcell, 549 U.S. at 4–5, 127 S. Ct. at 7 (emphasizing
voter confusion and burdens on state election administrators).
A temporary injunction would have no adverse effects on voters, who
will be none the wiser about the behind-the-scenes process. It likewise
would have no effect on any applicants who have already submitted a
request form, as it will merely allow the county auditors to more quickly
process their request. Behind the scenes, the county auditors would be
freed from the cumbersome communication requirements and would be
able to more quickly process the tens of thousands of request forms they
continue to process through the impending election, thus helping assure
48
all applicants, not just ones with deficient applications, timely receive
absentee ballots in time for their vote to count. Purcell principles do not
preclude us from entering a temporary injunction.
For these reasons, I respectfully dissent.
Christensen, C.J., and Appel, J., join this dissent.