Federal judge: Ballot challenges of suspected noncitizen Iowa voters can continue

A federal judge on Sunday said Iowa election officials can continue to challenge the ballots of more than 2,000 Iowans whose U.S. citizenship is unclear just days ahead of Tuesday’s election.

U.S. District Court Judge Stephen Locher issued an order denying a request by civil rights groups to block the directive from Iowa’s top elections official.

Citing a lack of cooperation with federal immigration officials and a need to prevent noncitizens from voting, Iowa Secretary of State Paul Pate directed local elections officials two weeks before the election to challenge the ballots of 2,176 Iowans who are legal residents but whose U.S. citizenship could not be verified.

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The individuals wound up on Pate’s list because at some point they indicated on Iowa Department of Transportation records they were not U.S. citizens. However, Pate has acknowledged those individuals could have become U.S. citizens since signing those Iowa DOT documents.

The Iowa chapters of the American Civil Liberties Union and the League of United Latin American Citizens filed a federal lawsuit last week in U.S. District Court for the Southern District of Iowa, claiming Pate’s order is unconstitutional because it treats some naturalized U.S. citizens differently by forcing them to vote via provisional ballot.

The plaintiffs include four Iowans who are naturalized citizens who appeared on Pate’s list and, when they voted early in the 2024 election, were ordered to cast a provisional ballot. Voters who cast provisional ballots have until Nov. 12 to provide documentation proving their U.S. citizenship to have their ballot counted.

Some county auditors have determined through their own research that many of the individuals listed in their counties are U.S. citizens and have full voting rights.

What did the court decide?

Locher, in his order, said while it “appears to be undisputed” that a relatively small portion of the names on Secretary Pate’s list — no more than 12 percent — are not U.S. citizens, “it would not be appropriate for the Court to respond by granting injunctive relief that effectively forces local election officials to allow ineligible voters to vote.”

He added the U.S. Supreme Court “has made clear that lower courts must be very careful before imposing injunctive relief in the immediate run-up to an election.”

The Supreme Court’s conservative majority on Wednesday left in place Virginia’s removal of more than 1,600 voters purged from the state’s voter registration list in the past two months in a program enacted through an Aug. 7 executive order from Republican Gov. Glenn Youngkin aimed at stopping people who are not U.S. citizens from voting.

The Justice Department and a coalition of private groups sued Virginia earlier in October, arguing that state election officials violated federal law’s 90-day “quiet period” ahead of elections.

The National Voter Registration Act requires that quiet period so that legitimate voters are not removed by errors that cannot be quickly corrected and ensure that if someone's registration is challenged, they have enough time to appeal it before Election Day.

While Pate has not removed anyone from the voter rolls, the fact that the Supreme Court nonetheless stayed the injunction in Virginia makes it difficult to conclude that injunctive relief should be issued, Locher wrote.

“In essence, this Court would be disregarding how the Supreme Court handled a situation in which the plaintiffs had an even stronger legal argument than Plaintiffs have here,” the judge wrote. “This the Court cannot do.”

Iowa Secretary of State blames U.S. government for stalling

Pate, during a news conference with reporters on Wednesday, acknowledged the data his office used to produce the list was outdated. He said he would like to use better data but that his office ran into federal government roadblocks.

Pate said he has been trying to acquire information from the federal Systematic Alien Verification for Entitlements (SAVE) database, which verifies immigration and citizenship status of applicants for government benefits or licenses.

County auditors have argued the letter from Pate instructs local officials to challenge voter eligibility without reasonable suspicion, creating a dilemma. They risk criminal charges for failing to follow Pate’s guidance, but in doing so could negatively affect naturalized citizens' voting rights.

In a supplemental brief filed with the court on Saturday, attorneys for the plaintiffs provided a sampling of DOT data that showed at least one voter's eligibility was being challenged based on a statement she made about her citizenship status more than 20 years ago, despite registering to vote in 2022. Others include DOT data more than eight years old. The attorneys argue the registered voter would have had ample opportunity to become a naturalized citizen, making the 2000 statement outdated and insufficient for suspicion to challenge her eligibility.

The new court filing also includes a sworn declaration from Johnson County Auditor Erin Shane, who is listed as a defendant in the suit. It states the dates listed for the 295 Johnson County residents who had indicated to the DOT they were noncitizens when they were issued an Iowa driver’s license or nonoperator ID reached back as far as 2007.

“We have been fielding a steady stream of voters who are coming to the auditor’s office presenting documentation,” according to Shane’s declaration. “These voters are frustrated and confused about why this is happening. In many cases, they have reported that they have voted in prior elections without issue and that nothing has changed in their status.”

Locher, however, notes Pate no longer opposes the eligibility of the four Iowans named as plaintiffs in the suit who confirmed their citizenship, and has since advised officials not to question the citizenship of known U. S. citizens. Local officials may exercise their own independent judgment based on information available as to whether a valid basis exists for challenging a voter’s eligibility, the court wrote.

The judge also noted there are approximately 150 registered voters on Pates’ list who registered to vote before admitting to the DOT that they were not U.S. citizens.

“Unless local election officials already have information explaining the discrepancy and confirming the eligibility of those voters, it is appropriate for their ballots to be challenged,” Locher wrote.

Despite imposing a slight burden, Locher said affected voters included on Pate’s list can still vote and have their ballots counted. Thus, plaintiffs have not proved irreparable harm, the court ruled.

Republican officials hail decision as a ‘win for Iowa’s election integrity’

Pate, Iowa Gov. Kim Reynolds and Iowa Attorney General Brenna Bird, all Republicans, issued statements Sunday praising the court’s decision as a “win for Iowa’s election integrity.”

“U. S. elections are for U.S. citizens, and ensuring only eligible voters participate in Iowa’s election process is essential to protecting the integrity of the vote,” Pate said in a statement. “The role of Iowa Secretary of State requires balance — ensuring that on one hand, every eligible voter is able to cast their ballot while also ensuring that only eligible voters participate in Iowa elections. Both of these are critical components to Iowa election integrity.”

Pate said his office continues to seek clarity on the citizenship status of the more than 2,000 registered Iowa voters, and urged the United States Citizenship and Immigration Services office in Washington, D.C. to allow the Iowa field office to release its review of the citizenship status of those individuals. The Secretary of State’s Office said the federal agency did not want to release the information “as it would require extensive review and oversight.”

Joe Henry, political director for LULAC Iowa, told The Gazette Sunday he is disappointed in the court’s decision, but said it put pressure on Pate’s office to acknowledge that naturalized citizens included on the list can vote a regular ballot if they provide their naturalization papers or a passport. As opposed to being required to vote provisionally and then provide documents after Election Day.

Henry said the process should have been started months before the election to avoid a chilling effect, and that auditors should have been allowed to notify individuals about their citizenship status in advance. He called Pate’s actions politically motivated.

“There was no need to do this at the very last moment. The federal government did come through, at least for the most part, to verify that most on the list that they could verify were naturalized citizens,” Henry told The Gazette. “And, again, we believe that the rest are too. So that's where it's at, and we will continue to fight for the rights of all Iowans.”

Henry said LULAC plans to propose legislative solutions to resolve the issue in the upcoming session of the Iowa Legislature.

Rita Bettis Austen, ACLU of Iowa legal director, echoed Henry in a statement and said the group still fear’s Pate’s directive threatens to disenfranchise eligible voters “simply because they are people who became citizens in the past several years.”

Concern about elections being undermined by noncitizen voting has been a focus of political messaging this year from Republican presidential nominee and former President Donald Trump and other Republicans, even though such voting is rare in American elections.

It is illegal for non-U. S. citizens to vote in federal elections, but there is no evidence that it is occurring in significant numbers, though Iowa and some other states have identified dozens of such cases.

Download: Noncitizen voting order.pdf

Gazette Des Moines Bureau Chief Erin Murphy and the Associated Press contributed to this report.

Comments: (319) 398-8499; tom.barton@thegazette.com