About four weeks ago, I was sent a link to a brochure prepared by the IA Chapter of the ACLU to assist Iowans convicted of felonies in navigating the unnecessarily complex process of applying to the Governor for a restoration of their voting rights. This seemed like a great idea; however, upon opening the link I was unpleasantly surprised to find several statements on the IA-ACLU’s website and in their brochure declaring that any Iowan convicted of an aggravated misdemeanor cannot legally vote, and referencing information set out inthe Governor’s website’s FAQ section (see the 2nd FAQ on the first page) to support this assertion.
When I say “unpleasantly surprised” I actually mean “horrified,” since I practice criminal law, and since it is my understanding that only a felony conviction triggers loss of voting rights, I don’t inform clients pleading guilty to an aggravated misdemeanor offense (e.g., Driving While Barred) that in doing so, he or she is effectively and permanently forfeiting his/her constitutional right to vote. I do explain the loss of voting rights to clients who are entering a guilty plea to a felony offense, and in accepting a plea to a felony, the judge always goes through it again, on the record, to make sure that the defendant understands exactly what he or she is giving up – but since I was under the impression that only a felony conviction triggers disenfranchisement (loss of voting rights), I don’t tell my clients otherwise, nor has any judge in any aggravated misdemeanor case I have ever handled.
So I was more than a little freaked out, and immediately turned to Secretary of State Matt Schultz’s website, since it is Iowa’s Secretary of State who is tasked with supervising Iowa’s 99 county auditors and enforcing Iowa’s election laws. I was relieved to discover that it very clearly states on the SOS website’s voting eligibility information page that only a felony conviction triggers loss of voting, and that Iowa’s official voter registration form only requires an applicant to certify that he or she has never been convicted of a felony – no questions about aggravated misdemeanor convictions. And after spending way too many hours researching and deconstructing the Iowa law controlling voting rights, I can unequivocally state that while there are many issues on which Matt Schultz and I do not agree (e.g., the need for overly burdensome voter ID regulations to control Iowa’s non-existent voter fraud problem), on this issue — and quite possibly only on this issue — I am 100% in the Secretary of State’s corner. (Quite a red letter day for Matt, I am sure).
But while I am thrilled to have found reassurance that Iowans with aggravated misdemeanor convictions can legally vote in Iowa, I am not thrilled about what appears to be a complete and total disconnect between Iowa’s Governor and Secretary of State on such a straightforward, yes or no issue. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”Reynolds v. Sims, 377 U.S. 533, 555 (1964), and Iowans have a right to be provided with clear, concise, and – most importantly – consistently correct information about those rights by Iowa’s leadership.
So if the Secretary of State is correct and Iowans convicted of an aggravated misdemeanor offense are eligible to vote under Iowa law (and he is, and they are), then it is a travesty that our Governor (unfortunately with the help of the IA-ACLU) is disseminating information indicating just the opposite, since by doing so he is misleading tens of thousands of Iowans about their right to participate in the democratic process (unintentionally misleading, I am sure, but still misleading). And if the Secretary of State is wrong (which he isn’t, on this issue at least, but let’s just suppose) then Iowans with an aggravated misdemeanor conviction who rely upon the SOS’s website, and do vote, could be charged with a felony offense under Iowa Code §39A.2(3) — and how ridiculous would that be? So clearly, everyone needs to be on the same page, and they need to be on the correct page, and for the reasons set out below I propose that the correct page is the page that definitively declares that in Iowa, it is a state or federal felony conviction, and only a state or federal felony conviction, that acts to disqualify an otherwise eligible Iowan from voting.
Iowa’s Constitution and Iowa’s laws support the Secretary of State’s position that it takes a felony conviction to disqualify Iowans from voting. Article II, Section 5 of Iowa’s Constitution, tells us that “A person adjudged mentally incompetent to vote or a person convicted of any infamous crime shall not be entitled to the privilege of an elector.” Thus, according to our Constitution, Iowans convicted of an “infamous crime” can’t legally vote – so what constitutes an infamous crime?
The dictionary definition of infamy is “an evil reputation brought about by something grossly criminal, shocking, or brutal” or “an extreme and publicly known criminal or evil act.” Some synonyms for infamous include abominable, atrocious, corrupt, degenerate, detestable, heinous, foul, loathsome, monstrous, odious, perverse, shocking, vile, and wicked. So common sense would suggest that an infamous crime is an extremely serious crime — one that normal people would find shocking, foul, wicked, etc.
Obviously, reasonable people can disagree on whether a specific crime reaches the level of shocking/foul/wicked, so who gets to decide whether or not a crime reaches that level? The Iowa legislature gets to decide — and in 1995, the legislature created a more specific definition: under IA Code §33.3(8), an infamous crime is “a felony as defined in section 701.7, or an offense classified as a felony under federal law.” And this definition of infamous crime was incorporated into Iowa Code §48.6(1), which states that in Iowa, a disqualified voter is a person who has been either “convicted of a felony as defined in Iowa Code §701.7″ OR “convicted of an offense classified as a felony under federal law”. That’s it, in a nutshell — if you don’t fall into one of those two categories, then you are legally eligible to vote in Iowa (at least as far a criminal convictions are concerned — there are some other rules having to do with age and mental status, but they aren’t relevant to this discussion).
So…. is a person convicted of an aggravated misdemeanor “convicted of a felony as defined in 701.7,” so as to fall into the first category of disenfranchised voters created by 33.3(8) and 48A.6(1)?
Absolutely not. Iowa Code §701.7 states that “A public offense is a felony of a particular class when the statute defining the crime declares it to be a felony.” This is a fancy way of saying that a person convicted of a state felony — whether it’s a felony conviction from Iowa or a felony conviction from Illinois or a felony conviction from Alaska etc — is convicted of a felony for purposes of disqualification of voting rights in Iowa, and cannot vote in Iowa unless and until the Governor restores his/her right to do so (which under our current administration is an extremely iffy proposition, but that’s a rant for another day). Under the full faith and credit concept, this makes sense — if a sister state declares a certain crime to be a felony, then as far as Iowa is concerned, it’s a felony. But clearly, an aggravated misdemeanor conviction would not be a felony conviction under this prong of 48A.6(1).
OK, then, is a person convicted of an aggravated misdemeanor “convicted of an offense classified as a felony under federal law?” so as to fall into the second category of disenfranchised voters created by 33.3(8) and 48A.6(1)?
Again, no. A conviction for “an offense classified as a felony under federal law” means, in my opinion, a conviction for a federal felony offense. I.e., it means what it says. Simple, right? And since an Iowa aggravated misdemeanor offense (or a misdemeanor offense from any state) is obviously not a federal felony offense, then an aggravated misdemeanor conviction does not trigger loss of voting rights.
I will acknowledge that the drafting of this prong of 48A.6(1) is sloppy, and that ideally, instead of “or convicted of an offense classified as a felony under federal law” the second prong of 48A.6(1) should read “or convicted under federal law of an offense classified as a felony.” Because the subordinate clause “under federal law” was stuck at the end of the sentence instead of after “or convicted,” which is where it belongs, the phrase is rendered somewhat ambiguous, and it is this slight ambiguity upon which the Governor has staked his claim that aggravated misdemeanor convictions trigger loss of voter rights. But more about the Governor’s convoluted analysis of the law shortly.
Under my analysis, Iowa Code §48A.6(1) – which incorporates the definition of “infamous crime” set out in Iowa Code §33.3(8) – clearly disqualifies people from voting in Iowa ONLY if they have been convicted of a felony in a state court OR if they have been convicted of a felony in a federal court, period. It does not disqualify people who have been convicted of aggravated misdemeanor offenses. That’s what the plain language of the law says, and this interpretation is certainly clear and consistent with the common sense, dictionary definition of infamous crime (a shocking/ foul/wicked crime), since while most Iowa felony offenses can, arguably, be considered shocking/foul/wicked, most (if not all) Iowa aggravated misdemeanor offenses simply cannot. (Here’s a chart that lists every Iowa criminal offense — check out the third column to spot the many many aggravated misdemeanors).
Best of all, this reasonable interpretation of the law doesn’t result in loss of voting rights for the tens of thousands of Iowans who have been convicted of aggravated misdemeanors or who have discharged aggravated misdemeanor convictions in the eighteen months since Gov. Branstad took office. It would be a horrible injustice for all of these non-felons to suddenly be informed, for the first time, just weeks before the extremely important upcoming election, that they will not be allowed to participate in this election — and thus I am very glad that the Secretary of State apparently agrees with my interpretation of Iowa voting law, and has been allowing and (I assume) will continue to allow Iowans convicted of aggravated misdemeanors to vote.
But if it’s so obvious that under Iowa law, only felony convictions trigger loss of voting rights, then what the heck are the Governor (and the IA-ACLU, unfortunately) doing taking the opposite position? I certainly don’t speak for the Governor, but I have engaged in some dialogue with the IA-ACLU rep, and here’s my best synopsis of my understanding of the rationale behind the assertion that a conviction for an aggravated misdemeanor does trigger loss of voting rights (and again, I may well be missing something or mistating their analysis and if so, hopefully someone will correct me):
1. That the first prong of 48A.6(1) – a conviction for “a felony as defined in 701.7″- means an Iowa felony conviction only, and does not refer to a felony conviction from any other state. I do not agree, since 701.7 clearly does not require that the public offense take place in Iowa, or that the statute declaring the public offense a felony be an Iowa statute. So I continue to maintain that a conviction for “a felony as defined in 701.7″ means a felony conviction from any state.
2. That the second prong of 48A.6(1) – “or convicted of an offense classified as a felony under federal law” – does not, in fact, refer to a conviction for a federal felony offense (which is certainly what it seems to refer to), it means instead a conviction for any crime, whether in state or federal court, that carries a maximum sentence of more than one year.
The argument is that (1) under federal law – federal, not state law – an infamous crime is defined as a crime that upon conviction carries a maximum period of incarceration of more than a year (which is true), and that (2) all federal crimes that carry a maximum sentence of more than a year in prison are classified as felonies (which is true), and thus (3) an Iowa aggravated misdemeanor conviction, which carries a maximum indeterminate two year prison sentence, is, in fact, a “felony” for purposes of taking away an Iowan’s right to vote (?).
My first reaction to this (confusing and convoluted, in my opinion) argument was “Seriously?” We are dealing with an interpretation of our STATE law here, folks, not federal law, and in enacting IA Code §33.3(8), the Iowa legislature specifically declined to define “infamous crime” as “a crime carrying a possible maximum sentence of incarceration in excess of one year” – i.e., the legislature did not simply adopt the federal definition of infamous crime for purposes of Iowa’s voting rights law, which it certainly could have done if that’s what it intended the law to be.
And the reason I assume the legislature didn’t just parrot federal law on this issue is because our Iowa “indeterminate” criminal sentencing structure is extremely different from that of the Federal “determinate” criminal sentencing structure. Under Federal law, a person convicted of a federal felony and sentenced to serve a (determinate) two year federal prison sentence is going to serve out almost all of that time locked up in federal prison; under Iowa criminal law, a person convicted of an aggravated misdemeanor and sentenced to an (indeterminate) two year state prison sentence is eligible for parole immediately upon entering prison, and if not paroled sooner, will completely discharge the sentence in about ten months, due to the fact that prison inmates are given 1.2 days of good time for every day that they serve.
In other words, while in theory an Iowa aggravated misdemeanor conviction carries a maximum sentence of more than a year, it would be extremely rare for a person serving a prison sentence due to an aggravated misdemeanor conviction to serve more than ten months in state prison, and thus in reality the sentence for an Iowa aggravated misdemeanor conviction is very much not the equivalent of the sentence for even the lowest level of federal felony conviction — which is why it’s problematic to interpret the second prong of 48A.6(1) in such a way as to elevate Iowa aggravated misdemeanor convictions to the same level of “infamy” as federal felony convictions.
And that’s what the Governor’s interpretation of 48A.6(1) does — it treats an Iowa aggravated misdemeanor conviction as the equivalent of a federal felony conviction for purposes of disenfranchising Iowans, even though this interpretation makes no sense in light of the different sentencing structures (i.e., it’s equating apples to oranges), and even though aggravated misdemeanors are not felonies and thus the plain language of 48A.6(1) could not possibly put any normal, non-attorney Iowan on notice of the fact that an aggravated misdemeanor convictions results in loss of voting rights.
Having said that, I’m an attorney, and because I handle criminal cases in state court and have some familiarity with federal criminal law, and because of the aforementioned problematic drafting on the part of whomever drafted 48A.6(1), I’ll acknowledge that there is an argument, however specious, to be made on behalf of the above position. But the fact that an argument can be made doesn’t mean that it’s a good argument, or that it’s an argument that should be made, and it’s my opinion that it is completely untenable for the Governor to embrace an interpretation of a state statute that ignores common sense and that requires reliance on definitions pulled from federal law, instead of on the plain language of the applicable Iowa law. Particularly when there is a much more reasonable and rational interpretation available that does not disenfranchise tens of thousands of Iowans convicted of crimes like driving while barred, possessing small amounts of drugs for personal use, operating while intoxicated for the 2nd timein 12 years, stealing less than $1,000 worth of stuff, or all sorts of other crimes which are certainly serious but which are certainly not serious enough to disqualify a person from voting for the rest of his or her life.
And just in case you aren’t yet convinced that under Iowa law, aggravated misdemeanor convictions don’t trigger loss of voting rights, let me point out a big problem with the Governor’s take on this issue – it’s redundant as all heck. Which is a problem because when a disagreement arises concerning the manner in which a specific code section should be interpreted – i.e., when the language in a statute is ambiguous and could arguably mean two different things – ultimately it’s up to an appellate court (in Iowa, either the Court of Appeals or Supreme Court) to decide which interpretation is the correct one. And when engaging in statutory construction, appellate courts frown on interpretations that result in redundancy within a specific code section (much less within a specific sub-section of a specific code section), which is the case with the Governor’s interpretation of 48A.6(1), as follows:
Both sides agrees that under 48A.6(1) you can’t legally vote in Iowa if you fall into either Category A or Category B, but there is disagreement as to the occupants of the respective categories. Under one analysis (mine, and I believe the Secretary of State’s), Category A consists of everyone convicted of a state felony offense, and Category B consists of everyone convicted of a federal felony offense – no redundancy there, right? Under the Governor’s theory, however, Category A consists of everyone convicted of an Iowa felony offense, and Category B consists of everyone convicted of any criminal offense carrying a sentence in excess of one year – which would include everyone convicted of an Iowa felony offense, right?
So under the Governor’s interpretation, the phrase “convicted of a felony as defined by 701.7″ is completely redundant and serves as mere surplusage. This may seem like a technicality, but in the world of statutory interpretation, it’s a big no-no of a technicality, and in my humble opinion pretty much seals the deal in favor of the following interpretation of Iowa Code §48A.6:
That in Iowa, a person convicted of either a state felony or a federal felony, cannot vote unless and until his or her voting rights are restored by the Governor, and that since a person convicted of an aggravated misdemeanor has not been convicted of either a state felony or a federal felony, a person convicted of an aggravated misdemeanor can legally vote in Iowa.
I may be wrong — I have been before, and I no doubt will be again — but for the sake of the (at least) 30,000 Iowans who will be ineligible to exercise a fundamental constitutional right if I am wrong, I sure hope that this time I have it right, and that the Secretary of State has it right, and that the Governor has it wrong. What do you think?