League of United Latin Am. Citizens of Iowa v. Pate

• Citation: 950 N.W.2d 204
• Decision Date: 21 October 2020
• Docket Number: No. 20-1249,20-1249
• Parties: LEAGUE OF UNITED LATIN AMERICAN CITIZENS OF IOWA and Majority Forward, Appellants, v. 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.
• Court: United States State Supreme Court of Iowa

950 N.W.2d 204

LEAGUE OF UNITED LATIN AMERICAN CITIZENS OF IOWA and Majority Forward, Appellants,

v.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.

No. 20-1249

Supreme Court of Iowa.

Submitted October 15, 2020

Filed October 21, 2020

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.

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.

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) , 950 N.W.2d 1 (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 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 , 978 F.3d 220, 224–25 (5th Cir. 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 ... than with in-person voting.’ " (alteration in original) (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 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. 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...