UPDATES & ANALYSIS
Iowa Supreme Court Hears Oral Arguments in High-Profile Ballot Access Dispute
by Colin Smith | April 10, 2014
By Colin Smith
Does pleading guilty to a second-offense OWI result in an individual being barred from running for office under the “infamous crime” clause of the Iowa Constitution? That’s the question the Iowa Supreme Court was confronted with yesterday during oral arguments in Chiodo v. The Section 43.24 Panel. The answer could determine the outcome of an upcoming Iowa State Senate race, but it could also have a far reaching impact on Iowa’s ballot access and voter eligibility rules in the 2014 election and beyond.
Although the technical “defendant” in Chiodo is a state ballot access objection panel, the dispute actually is between two candidates competing in a primary election for State Senate District 17. One candidate, Tony Bisignano, was arrested last year and charged with second offense drunk driving. Bisignano pled guilty to the charge and received a sentence of two years’ incarceration with all but seven days suspended, as well as probation and community service. Several months later, Bisignano declared his intention to seek the Democratic nomination for District 17. Another candidate in the same primary, Ned Chiodo, filed a formal objection to Bisignano’s candidacy, based on the theory that an OWI 2nd conviction is an “infamous crime” under Article II, Section 5 of the Iowa Constitution, which means that Bisignano is prohibited from running for office or voting.
A so-called Section 43.24 ballot access objection panel was convened to hear Chiodo’s objection (hence the caption of the case). Sitting on the panel was Iowa Attorney General Tom Miller, Iowa Secretary of State Matt Schultz, and Iowa State Auditor Mary Mosiman. Chiodo argued that past Iowa Supreme Court precedent, as well as the text and history of the Iowa Constitution, supported his argument that Bisignano should be denied a spot on the primary ballot. Bisignano, in response, argued that the precedent cited by Chiodo was not directly on point, and that the Iowa Constitution should be read differently in light of certain legislative amendments to the Iowa Criminal Code.
The panel ruled in favor of Bisignano by a unanimous vote, saying that the candidate was eligible to be on the ballot. Chiodo appealed to the district court, where the panel’s decision was affirmed. Chiodo now has brought his case directly to the Iowa Supreme Court, which agreed to hear an emergency appeal of the case so that the dispute could be resolved before the upcoming statutory deadline for the printing of election ballots.
The parties’ briefs and oral arguments raise two interesting legal and policy issues.
First, how should the Court determine whether a particular crime is “infamous” or not? On this point, the parties and the justices wrestled with whether the “infamousness” of a crime should be defined by the potential punishment at stake, by the underlying nature of the crime, or by some other measure. Chiodo urged the Court stick to the rule it adopted in previous cases, which is that any crime that is punishable by time in the penitentiary is “infamous.” The Attorney General, who represents the entire panel on appeal, argued that a crime is infamous if it’s a felony, and since an OWI 2nd is an aggravated misdemeanor, Bisignano is eligible to run. Bisignano, on the other hand, argued that the Court shouldn’t look at the potential sentence, but should instead consider whether the crime in question affects the ability of the offender to honestly and effectively serve in office, as well as whether the crime could call into question the candidate’s (and the electoral process’s) integrity.
Second, because the Iowa Constitution, the Iowa Code, and previous Iowa cases often treat the right to vote and the right to hold office as overlapping and tandem rights, how will the Court’s ruling in this case effect the ability of Iowans convicted of similar offenses to vote or to hold office in the future? Bisignano raised the possibility that the Court’s decision could disenfranchise (or not) thousands of Iowans with criminal records. Bisignano’s arguments to this effect served to remind the Court that the question before it might have broader implications than just the eligibility of one candidate in one race.
In addition to these constitutional and policy questions, there is also an interesting side-issue that has weighed heavily during the proceedings of the Chiodo case. When the ballot access objection panel originally convened, Chiodo requested that Attorney General Miller recuse himself from participating in the panel’s deliberations and decision because an assistant attorney general who works in Miller’s office, Nathan Blake, is also a declared candidate in the same primary race in which Chiodo and Bisignano are running. Some observers have speculated that if Bisignano is ruled eligible to run, a three-way race might improve Blake’s chances of winning. Asserting that this creates a conflict of interest on the part of Attorney General Miller and his office, Chiodo sought to have Miller taken off the panel. Miller refused Chiodo’s request and issued a written statement explaining why he believed there was no serious conflict of interest warranting recusal.
On appeal, Chiodo raised the argument that Attorney General Miller’s refusal to step down from the panel might have violated Chiodo’s right to have his objection heard before an unbiased tribunal. During yesterday’s oral argument, Chiodo’s attorney continued to make this point by asking the Court to find that Attorney General Miller’s participation in the panel might have affected the integrity of the panel process. Chiodo’s attorney buttressed this conflict of interest argument with assertions that assistant attorney general Kevin McCarthy gave Bisignano an informal opinion stating that Iowa’s infamous-crime clause did not bar his eligibility to run for office.
The Court is expected to rule in the case relatively quickly given the time constraints and the electoral realities involved. On Brief will provide an analysis of the Court’s decision when it is handed down.
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