UPDATES & ANALYSIS

Chief Justice Cady: “Voices of democracy,” not the Court, can alter Infamous Crimes Clause

by Rox Laird | June 30, 2016

In his opinion for the Iowa Supreme Court in Thursday’s voting rights decision, Chief Justice Mark Cady said expanding voting rights for convicted felons must come in response to the “voices of democracy.”

The question is, how might that happen?

Thursday’s decision in Kelli Jo Griffin v. Paul Pate closed the door to the Court changing the law, at least for the foreseeable future.

Under the Iowa Constitution, “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.” Griffin had asked the court to rule that her conviction on a felony drug charge did not rise to the level of an “infamous” crime.

More broadly, advocates of restoring voting rights to convicted criminals in Iowa pinned their hopes on the court using the Griffin case to adopt something other than felonies to define “infamous” crimes. They argued the definition should be based on crimes that undermine institutions of democracy or the electoral process, such as treason or voter fraud.

But the court in the 4-3 decision said there is insufficient evidence that society’s views about which crimes are infamous has changed from the time of the drafting of the Iowa Constitution more than 150 years ago to acts of the Legislature within the past two decades. Iowa’s founders did not intend to confine “infamous” crimes to just those that undermine elections, and more recently the Legislature explicitly defined them as felonies.  “The bottom line,” Cady wrote, “is that throughout history the concept of infamous crime may have included crimes in addition to felonies, but it always included felonies or crimes that would be classified as felonies today.” 

At the same time, the majority opinion seems to leave open the possibility that attitudes can change and that the meaning of the infamous-crimes provision can change with it.  It’s not clear from the ruling what that evidence might be.  The Legislature could, by statute, change the definition of what crimes strip criminals of their voting rights.  That doesn’t change the Constitution; but it may be the type of societal change that the court is looking for when determining how the infamous-crimes provision should be interpreted.

And, of course, there are “voices of democracy” that are more direct.  There could be an amendment to the constitution, which would require passing resolutions by two successive Iowa General Assemblies and ratification by Iowa voters.

Alternatively, the governor could, by executive order, restore voting rights of convicted felons (or a subset of them) who have completed their sentences. (Gov. Tom Vilsack did that, but Gov. Terry Branstad subsequently revoked the order and requires convicted felons to apply individually for restoration of their rights.)

As for the court, not everyone was in agreement on the current meaning of “infamous crime.” 

Writing three separate dissents, Justices David Wiggins, Daryl Hecht and Brent Appel said the court should have limited the constitutional meaning infamous crimes to just those that undermine the electoral process. All three stressed that the court ultimately must define the meaning of the Iowa Constitution, not the Legislature.

Cady, who was joined by Justices Edward Mansfield, Thomas Waterman and Bruce Zager, appeared to agree that it is ultimately the job of the court to make the call. But the majority was unwilling to make that call without evidence that public opinion has evolved to a point where it is clear that the change should be made.