Iowa Supreme Court splits over what kinds of criminals can vote

by Ryan Koopmans | April 16, 2014

By Ryan Koopmans

We didn’t have to wait long for the Supreme Court to decide its most important case of the term.  Last Tuesday, the justices heard arguments over whether a second OWI offense is an “infamous crime” under the Iowa Constitution.  Yesterday–one week after the oral argument–the Iowa Supreme Court ruled, by a 5-1 vote, that it’s not.

That might not seem that important.  It is.

For starters, it means that Tony Bisignano can run for State Senate.  Article II, section 5 of the Iowa Constitution says that a person who’s been convicted of an “infamous crime” can’t be an “elector” (which means they can’t run for office), and one of Bisignano’s primary opponents (Ned Chiodo) argued that a second OWI (which Bisignano has been convicted of) is an infamous crime.  Five of the six sitting justices disagreed with that. (The seventh, Justice Appel, was recused.)

But the case is much bigger than one Senate race.  And that’s where it gets interesting.

To vote you also have to be an eligible “elector,” meaning that people who’ve been convicted of an infamous crime can’t vote–at least not unless their voting rights have been restored.  So the line between an infamous crime and a run-of-the-mill crime can affect everything from school boards to the presidency.  (Iowa’s a swing state, after all.)

So where is the line?  We don’t know yet. The justices split three ways and no opinion garnered a majority.  In addition, Chief Justice Cady’s plurality opinion (that’s what they call the opinion with the most votes) doesn’t say where the line is, though it does say that the crime must at least be a felony to be infamous.

Chief Justice Cady, joined by Justices Hecht and Zager, recognized that the Iowa Supreme Court ruled in 1916 (and again in 1957) that an infamous crime is one that could result in prison time.  But he brushed those cases aside because the Court had “never engaged in a textual analysis of the meaning of ‘infamous crime.'” Article II, section 5 refers to convictions for infamous crimes, not the sentences, so the Chief concluded that the framers couldn’t have been referring to potential prison sentences; instead, they must have been referring to the type of crime.

But the Chief also concluded that it’s not as simple as labeling all felonies infamous and all misdemeanors not infamous, which was the Attorney General’s position. The word felony appears in other parts of the Iowa Constitution, so the Chief concluded that infamous crime can’t be synonymous with felony; it has to mean something different.  Relying heavily on an Indiana Supreme Court decision, and tracking the ACLU’s amicus brief, Chief Justice Cady concluded that “the meaning of an ‘infamous crime’ under article II, section 5 looks not only at the classification”– felony vs. misdemeanor–but also on “how a voter’s conviction of that crime might compromise the integrity of our process of democratic governance through the ballot box.”  The crime must at least rise to the felony level to be infamous, Chief Justice Cady concluded, but beyond that he wasn’t willing to say what kinds of felonies “compromise the integrity of our democratic governance” and which kinds of felonies don’t.  That question, he said, would be left for another day because the crime at issue in this case–an OWI 2nd–is not a felony, so it doesn’t pass the first prong of his test.

Justice Mansfield wrote a concurring opinion, which Justice Waterman joined.  He agreed that misdemeanors aren’t infamous crimes, even if they carry a potential prison sentence.  But he disagreed with the second prong of Chief Justice Cady’s test–that only those felonies that, in the Court’s view, affect the integrity of elections are infamous–saying that it is an “odd mix of half-hearted originalism and excessive fealty to a court decision from Indiana” that “offers[s] no guidance at all” and leaves “the door wide open for future litigation.”

Unlike Chief Justice Cady, Justice Mansfield found it significant that the constitutional provision that the Court was dealing with (article II, section 5) was ratified in 2008, not 1857.  The 1857 provision said that “No idiot, or insane person, or person convicted of any infamous crime” can be an elector.  In 2006, the Iowa legislature proposed to repeal that provision and replace it with the one we have now, which says that “A person adjudged mentally incompetent to vote or a person convicted of any infamous crime” can’t be an elector.  That proposal passed the legislature in 2006 and 2007 (constitutional amendments must pass through two consecutive legislative sessions) and the Iowa voters ratified it in 2008.

Chief Justice Cady disregarded that amendment because the purpose was to merely delete the offensive language (“idiot” and “insane person”) and thus he believed that the legislature wasn’t focusing on the “infamous crime” phrase.  But as Justice Mansfield noted, when the legislature voted twice to repeal the old provision and replace it , there was a 1994 statute on the books (which remains there today) that defined an infamous crime as a felony.  So when the legislature approved the new amendment, Justice Mansfield reasoned, it must have believed that an “infamous crime” was a felony, and it’s the belief of those legislators that governs–though their belief may be informed by what they thought the framers intended. “It would be absurd,” Justice Mansfield wrote, “to suggest the legislature intended to approve a constitutional amendment that struck down its own law” that defined infamous crimes as felonies.

There’s also evidence that the voters who ratified the new amendment had the same understanding  of infamous crime (if they had any understanding at all).  In October 2008, the Des Moines Register published an editorial that urged voters to pass the amendment but suggested that that infamous-crime phrase provision should also be changed in the future because “the right to vote is denied to convicted felons, even those who have served their sentences.”  The implication was that the editorial board believed, as most everyone did until now, that at the very least all felonies are engulfed by the infamous-crime provision.  And with that understanding, the voters reinserted it back into the Constitution.

Justice Wiggins dissented, meaning that he would rule that aggravated misdemeanors (like an OWI 2nd) are indeed infamous crimes, and thus Bisignano shouldn’t be on the ballot.  He expressed frustration that Chief Justice Cady’s plurality opinion “is rewriting nearly one hundred years of caselaw,” which ruled that any crime that carries a potential sentence of imprisonment is infamous.  (Justice Mansfield, for his part, wouldn’t overrule those cases either; but because felonies were the only crimes subject to imprisonment in 1916 and 1957, the years those cases were decided, he didn’t take those older Supreme Court opinions to mean that nonfelonies might be infamous.)

In addition to being “unnecessary,” Justice Wiggins warned that erasing the bright-line rule is “dangerous” because “we can no longer look to the crime’s penalty to determine who can vote and who cannot vote.” “The uncertainty” of the plurality opinion, Justice Wiggins wrote, “will keep many qualified voters from the polls for fear of prosecution for voter fraud” and “will lead to greater election day problems and the casting of an inordinate amount of provisional ballots.”

So uncertainty is one of the big takeaway’s from the Chiodo decision.  No opinion got a majority, so no opinion, at least in total, is the law.  And even if Chief Justice Cady’s opinion ultimately becomes the lodestar, the Court will probably have to decide several cases before it becomes clear which felonies are infamous and which ones aren’t.  Finally, Justice Appel’s recusal leaves one vote still on the table.  If he sits for the next case, which may come very soon, then his vote could be the deciding one.  If he join’s the Chief Justice’s position, then there will be a majority.  If he joins Justice Mansfield or Justice Wiggins, then the uncertainty will continue.

Of course, the justices’ positions could change.  The Court got the final brief in this case on April 7, heard oral argument on April 9, and issued its decision on April 15.  The justices needed to move that quickly so that ballots can be printed, and considering the timeline, the opinions are incredibly thorough.  But this is a significant issue that the Iowa Supreme Court hasn’t addressed since 1957, and hasn’t addressed in detail ever.  So it’s possible that at least one justice could change his mind.  And it’s possible that Justice Appel’s thoughts will do some mind changing.

But we do know one thing: No misdemeanor is an infamous crime.  Five justices (all but Justice Wiggins) agreed on that point.  We’ll find out more in the next decision–and more in the decision after that.


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