News : Civil Rights groups sue Iowa Secretary of State over potential noncitizen voting

By Robin Opsahl

Civil rights groups and immigrant advocates have filed a federal lawsuit against Iowa Secretary of State Paul Pate on behalf of naturalized U.S. citizens in Iowa affected by his order to challenge the ballots of 2,022 people listed as potential noncitizens in the 2024 election.

The lawsuit calls for Pate to rescind his guidance calling for county auditors to challenge the ballots of Iowa voters who are on a list compiled by the Secretary of State's office as potential noncitizens.

The American Civil Liberties Union, ACLU of Iowa and a law firm representing the League of United Latin American Citizens filed the lawsuit Wednesday night in the Southern District of Iowa. Four naturalized citizens, as well as LULAC as an organization and on behalf of its members, are listed as plaintiffs.

These voters were labeled as potential noncitizens because an audit conducted by the office found that in the past 12 years, they identified themselves to the Iowa Department of Transportation or another government entity as noncitizens. Since that point, the 2,022 individuals registered to vote or participated in elections. The secretary of state's office sent lists of these individuals to county auditors last week, directing the county election officials to challenge the qualifications of these voters and have them cast provisional ballots.

Many of these individuals are expected to have gained U.S. citizenship through naturalization since reporting themselves as noncitizens to the state, meaning they have the legal right to vote. However, Pate said in a Wednesday news conference that Iowa was denied access to the U.S. Citizenship and Immigration Services' Systematic Alien Verification for Entitlements (SAVE) database to check whether these individuals were U.S. citizens, which is why the office pursued the ballot challenging strategy.

Pate argued that this approach was needed to address concerns about noncitizens participating in this year's elections while ensuring that all legal voters could still cast their ballots.

"We want everyone to be able to vote, that is why none of them have been taken off the voter rolls," Pate said Wednesday. "But we do have do it. We do (have) an obligation to make sure that they are citizens now. That's why we've asked the county auditors, through the poll workers, to challenge those voters and allow them to confirm their citizenship status so that we can count their vote as well."

But in a Thursday news conference, speakers with the ACLU of Iowa and plaintiffs said this action still effectively disenfranchises voters. Rita Bettis Austen, the legal director for the ACLU of Iowa said the secretary of state-issued list uses "deeply flawed, outdated information" to challenge the rights of naturalized U.S. citizen voters in Iowa. She said that violates the U.S. National Voter Registration Act requirements of a 90-day "quiet period" ahead of the election.

The federal law prohibits states from systematically removing "ineligible voters" from voter rolls during this time period - starting Aug. 7 for the 2024 general election - to prevent possible errors close to the election.

"The bottom line is … that's one of the reasons why this is a violation of the constitutional rights of our citizen voters here who are being swept up in this, and it is just one of the reasons," Austen said.

Austen also said the lawsuit argues that Pate's action violates naturalized citizens' fundamental right to vote and due process rights, as well as violating the equal protection clause of the U.S. Constitution's 14th Amendment by discriminating against voters on the basis of their national origin and status as naturalized citizens.

The suit names Pate as well as five county auditors in Polk, Winneshiek, Pottawattamie, Johnson and Scott counties, as defendants in the case.

Among the plaintiffs in the suit is Orçun Selçuk, an assistant professor of political science and international studies program director at Luther College in Decorah. Selçuk, a Turkey native and U.S. citizen, said he received notice from the Winneshiek County auditor after voting early in October that his ballot was being challenged on the basis of his citizenship. The letter said he had a deadline of Nov. 12 at 12 p.m. to provide proof of citizenship, but did not specify what proof was required or where he had to go to show these documents, he said.

"After you become a U.S. citizen, one of the things they tell you is that you are now eligible to vote," Selçuk said. "But the state of Iowa seems to have some questions about that. I'm concerned about other new, full citizens who took their time to go and vote the first time, and now maybe they have to go back again, to prove themselves once again. Maybe they won't have the time or the transportation, or maybe they will be afraid to go to the auditor's office. I'm concerned about their vote not being counted, and about new citizens being intimidated from voting, especially with people new to the country. They may be wrongly concerned about doing something wrong or breaking a law that they were not aware of."

On Wednesday, the U.S. Supreme Court granted a temporary stay in the lawsuit over Virginia Gov. Glenn Youngkin's order 90 days before the election that resulted in more than 6,000 people being removed from Virginia's voter rolls. The stay overturns a lower court's ruling that would have required the state restore 1,600 people to voter rolls.

Jonathan Topaz, a staff attorney in the ACLU Voting Rights Project, said there are major differences between Virginia's and Iowa's cases, including different constitutional rights violation claims. He also said the difference in timing is crucial when comparing the two states' actions on alleged noncitizen voters.

"The executive order in Virginia came in August and and the secretary's directive here came on Oct. 22 - that was exactly two weeks before Election Day, and when early voting had already been underway in Iowa," Topaz said. "And so, this has created a much more chaotic and burdensome problem for Iowa voters, in large part because of the unreliability of the records on which it relies, because there's simply no time for quality control here and to get folks adequate notice. And there's absolutely no reason why these challenges needed to be brought so close to Election Day. They could have been brought months, years earlier, or they could have been brought after the election."

Iowa Attorney General Brenna Bird released a statement on the lawsuit, saying she is "fighting to defend our long-standing election integrity laws and ensure Iowans can maintain trust in our elections."

"Iowa law guarantees that every eligible voter can vote and every legal vote will count," Bird said in a statement. "But now, with only a few days until the election, and many Iowans already voting, LULAC is trying to derail our election integrity systems to let noncitizens illegally vote. Every noncitizen who illegally votes cancels out an Iowan's valid vote. We won't let that happen."

The secretary of state's office did not respond to a request for comment on the lawsuit, but Pate said in a news release Thursday that the Des Moines Field Office of the United States Citizenship and Immigration Services have completed a review of all individuals identified as potential noncitizens by the state office, but that the federal USCIS office "is refusing to let the Des Moines office share those results with us." Pate said this information is necessary to ensure naturalized U.S. citizens can cast regular ballots rather than provisional ballots.

"We are grateful to the Des Moines Field Office of USCIS for performing this laudable task on behalf of Iowa voters," Pate said in the statement. "We urge the Washington, D.C. Office, who refuses to release this key information, to do so and provide clarity and certainty regarding these Iowa voters and allow Iowa elections to be run more efficiently."

Pate also said in the statement that the U.S. Department of Justice has indicated it may challenge Iowa's process. The federal department declined to comment Wednesday and has not responded to a request for comment Thursday.

"During our initial meeting with the DOJ, we informed them that USCIS had already reviewed each and every name and has determined whether they are naturalized or are still noncitizens," Pate said. "As such, we asked the DOJ to request their federal colleagues at the Washington, D.C. Office to release this important clarifying data to us."