NED CHIODO, Appellant, vs. THE SECTION 43.24 PANEL CONSISTING OF: SECRETARY OF STATE MATTHEW SCHULTZ, AUDITOR OF STATE MARY MOSIMAN and ATTORNEY GENERAL THOMAS MILLER, Appellee, ANTHONY BISIGNANO, Intervenor-Appellee.
No. 14–0553
IN THE SUPREME COURT OF IOWA
Filed April 15, 2014
David L. Christensen, Judge.
Appeal from the Iowa District Court for Polk County, David L. Christensen, Judge.
In an expedited appeal from a ruling on judicial review, the petitioner challenges the denial of his objection to the intervenor’s eligibility to seek elective office. AFFIRMED.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor General, and Meghan L. Gavin, Assistant Attorney General, for appellees.
Joseph C. Glazebrook of Glazebrook, Moe, Johnston & Hurd, LLP, Des Moines, for intervenor-appellee.
Rita Bettis and Randall C. Wilson, Des Moines, for amicus curiae American Civil Liberties Union of Iowa Foundation, Inc.
CADY, Chief Justice.
In this appeal, we must decide if the Iowa Constitution disqualifies a person who has been convicted of the crime of operating while intoxicated (OWI), second offense, from holding a public office. The state elections panel (Panel) found the intervenor in this case was not disqualified, as did the district court on judicial review of the Panel decision. On our review of the district court decision, we hold a person convicted of the crime of OWI, second offense, is not disqualified from holding a public office in Iowa. We affirm the decision of the district court.
I. Background Facts and Proceedings.
On March 11, 2014, Anthony Bisignano filed an affidavit of candidacy for Iowa Senate in District 17 with the Iowa Secretary of State. District 17 covers a portion of Polk County, and Bisignano sought the Democratic nomination. Two days later, Ned Chiodo filed an objection to the affidavit of candidacy filed by Bisignano. Chiodo had previously filed an affidavit of candidacy for Iowa Senate in District 17. He also sought the Democratic nomination, along with another candidate, Nathan Blake. Blake is an assistant attorney general in the Iowa Department of Justice.
In the objection, Chiodo claimed Bisignano was disqualified from holding public office based on his prior conviction of the crime of OWI, second offense. Chiodo requested the Secretary of State not to place Bisignano’s name on the primary ballot.
Bisignano was convicted in district court of OWI, second offense, on December 9, 2013. The district court sentenced him to a term of incarceration not to exceed two years, but suspended all but seven days of the incarceration and placed him on probation with the Iowa Department of Correctional Services for two years.
The objection filed by Chiodo with the Secretary of State was heard by the three-person panel on March 19, 2014. On March 21, the Panel denied the objection.
Chiodo filed a petition for judicial review of the decision of the Panel with the district court. On April 2, the district court affirmed the decision of the Panel. Chiodo
Chiodo raises two issues for review on appeal. First, he argues Attorney General Thomas Miller was required to recuse himself from considering the objection as a part of the three-person panel due to a conflict of interest. Second, he claims a criminal conviction for an aggravated misdemeanor constitutes an infamous crime, which disqualifies a person with such a conviction from holding office under
We decline to consider Chiodo’s challenge to the Attorney General’s participation on the Panel. In oral argument, Chiodo acknowledged he does not assert this claim to seek a remedy in this case. We thus proceed only to consider Chiodo’s main contention that the Panel’s ruling that OWI, second offense, was not an infamous crime was contrary to the Iowa Constitution.
II. Scope of Review.
The Iowa Code authorizes judicial review of agency decisions that prejudice the “substantial rights” of the petitioner.1
III. Discussion.
The laws of this state provide that a person who seeks public office must be an “eligible elector.”
Voting is a fundamental right in Iowa, indeed the nation. See Devine v. Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978). It occupies an irreducibly vital role in our system of government by providing citizens with a voice in our democracy and in the election of those who make the laws by which all must live. See Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481, 492 (1964). The right to vote is found at the heart of representative government and is “preservative of other basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 562, 84 S. Ct. 1362, 1381, 12 L. Ed. 2d 506, 527 (1964); accord Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 1071, 30 L. Ed. 220, 226 (1866).
While our constitution underscores the importance and respect for the voting process that gives voice to democratic governance, it does not extend that voice to
As with many other terms and phrases in our constitution, our founders did not give us a definition of the phrase “infamous crime.” From the beginning of our constitutional journey as a state, as now, the courts have been given the role to interpret the constitution and provide the needed definition so our constitutional principles can be applied to resolve the disputes we face today. See Varnum v. Brien, 763 N.W.2d 862, 875 (Iowa 2009). Our founders not only declined to list specific crimes that would disqualify people from participating in the election process, they did not use traditional classes or categories of crimes such as felony or misdemeanor to disqualify a voter. Instead, our founders gave us the phrase “infamous crime.” The foundational question we face today is whether the crime of OWI, second offense, is an infamous crime.
We do not begin our resolution of this case on a clean slate. We have considered the meaning of the phrase “infamous crime” in the past and have given it a rather direct and straightforward definition. We have said “[a]ny crime punishable by imprisonment in the penitentiary is an infamous crime.” State ex rel. Dean v. Haubrich, 248 Iowa 978, 980, 83 N.W.2d 451, 452 (1957); accord Blodgett v. Clarke, 177 Iowa 575, 578, 159 N.W. 243, 244 (1916) (per curiam); see also Flannagan v. Jepson, 177 Iowa 393, 399–400, 158 N.W. 641, 643 (1916).
If this definition is applied to resolve the question in this case, we need little additional analysis. Our legislature has defined the crime of OWI, second offense, as an aggravated misdemeanor.
Our judicial process is built on the general principle of stare decisis. We normally build upon and follow our past cases. Yet, our experience has revealed times when our precedents must be overturned. State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014). Within a system of justice, courts cannot blindly follow the past. Instead, we are obligated to depart from past cases when they were erroneously decided. Thus, we turn to review our prior cases that have interpreted the phrase “infamous crime” to determine if those cases were correctly decided.
We first considered the phrase “infamous crime” outside the context of
On appeal, we were required to address the procedural rights afforded under the constitution to a person found in contempt
sentenced to the penitentiary for that contempt. See id. at 398–402, 158 N.W. at 642–44. Because the Iowa Constitution limits the imposition of involuntary servitude to “punishment of crime,”
In Ex parte Wilson, the Court noted that two concepts of infamy existed prior to the Fifth Amendment. 114 U.S. at 422, 5 S. Ct. at 937, 29 L. Ed. at 91. These two concepts addressed distinct circumstances. See id. (citing Lord William Eden Auckland, Principles of Penal Law ch. VII, § 6, at 54 (London 1771)). One concept focused on the mode of punishment for a person who commits an infamous crime; the other dealt with disqualification of a person who committed an infamous crime from being a witness. See id. “[T]he infamy which disqualified a convict to be a witness depended upon the character of his crime, and not upon the nature of his punishment.” Id. at 422, 5 S. Ct. at 937–38, 29 L. Ed. at 91. The list of infamous crimes recognized at the time included
treason, felony, forgery, and crimes injuriously affecting by falsehood and fraud the administration of justice, such as perjury, subornation of perjury, suppression of testimony by bribery, conspiring to accuse one of crime, or to procure the absence of a witness, [but not] . . . private cheats, such as the obtaining of goods by false pretenses, or the uttering of counterfeit coin or forged securities.
Id. at 423, 5 S. Ct. at 938, 29 L. Ed. at 91. Because the latter definition of infamy—pertaining to disqualification—was “already established” at
the time the Fifth Amendment was ratified, the Supreme Court reasoned the Fifth Amendment’s definition must incorporate the infamous punishment standard instead. See id. at 422–24, 5 S. Ct. at 937–38, 29 L. Ed. at 91.
We followed the reasoning from Ex Parte Wilson that the right to be prosecuted by indictment for an “infamous crime” under the Fifth Amendment applied the concept of “infamous punishment,” not the particular type or character of the crime. See Flannagan, 177 Iowa at 401, 158 N.W. at 643–44. Quoting Wilson, we said, “ ‘For more than a century, imprisonment at hard labor in the . . . penitentiary . . . has been considered an infamous punishment in England and America.’ ” Id. at 400, 158 N.W. at 643 (quoting Ex parte Wilson, 114 U.S. at 428, 5 S. Ct. at 940, 29 L. Ed. at 93). Thus, we held in Flannagan that a person sentenced to a year of hard labor in the penitentiary was entitled to due process protections. Id. at 401–02, 158 N.W. at 644. Nevertheless, we made no effort to define an “infamous crime” under the Iowa Constitution for purposes of disqualifying persons from voting. We also did not decide if the punishment concept or the character-of-the-crime concept applied to the context of voting.
A few months after we decided Flannagan, we decided Blodgett. Unlike Flannagan, Blodgett did implicate
400, 158 N. W. at 643). However, we provided no other analysis in explaining our decision. See id.
Our jurisprudence on infamous crimes following Blodgett sat dormant until 1957, when we decided Haubrich. In Haubrich, the defendant had been convicted of income tax evasion under federal law, and the rights the parties assumed he had lost as a result of that conviction had been restored by the governor. 248 Iowa at 979–80, 83 N.W.2d at 452. The case turned on two questions: whether a person loses citizenship upon a federal conviction for what would constitute an infamous crime if convicted under state law and whether the Governor of Iowa has the power to restore such a person’s rights under Iowa law, even if there has been no presidential pardon. See id. at 982–87, 83 N.W.2d at 453–56. Identifying the constitutional context of the case, however, we reiterated the concept articulated in Blodgett and Flannagan that an infamous crime was punishable by imprisonment in the penitentiary. See id. at 980, 83 N.W.2d at 452. Thus, we did not undertake to define “infamous crime,” but only addressed the process and consequences that follow after a person is convicted of an “infamous crime.” We merely followed the path first taken forty-one years before and made no independent analysis.
This background reveals that we have never engaged in a textual analysis of the meaning of “infamous crime” in
In examining the text of
constitutional interpretation framework, we first look to the words used by our framers to ascertain intent and the meaning of our constitution and to the common understanding of those words. Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004). We recognize, of course, that “words at best are mere messengers of the thoughts and ideas they are sent to convey.” Rudd v. Ray, 248 N.W.2d 125, 129 (Iowa 1976). Yet, the specific constitutional language at issue speaks of a conviction of a crime, not punishment for a crime. Moreover, our founders knew the difference between the concepts of conviction and punishment. In prohibiting slavery and involuntary servitude under our constitution, our founders prohibited involuntary servitude “unless for the punishment of crime.”
It is also instructive that the obvious purpose of
civil rights, infamous described the nature of the crime itself, irrespective of punishment. See Snyder v. King, 958 N.E.2d 764, 773–76 (Ind. 2011) (reviewing the historical backdrop of its infamous crimes clause and concluding “[h]istory thus demonstrates that whether a crime is infamous . . . depends . . . on the nature of the crime itself”).
It is also important to observe that the previous binary nature of punishment in Iowa has given way to a more complex and nuanced continuum of punishment. At the time of our constitutional convention, only two classifications of crimes existed—felonies and misdemeanors. Felons were sent to prison; misdemeanants were sent to jail. See Iowa Code § 2816 (1851) (“Public offenses are divided into felonies and misdemeanors.”);
We conclude Blodgett was clearly erroneous and now overrule it. We also disapprove of any suggestion in Flannagan or Haubrich that the mere fact that a crime is punishable by confinement in a penitentiary
disqualifies the offender from exercising the privilege of an elector. Consequently, Chiodo’s position quickly unravels from the threads of the three cases from which it was spun. Yet, we must still decide the underlying question whether the crime of OWI, second offense, is an infamous crime. Our constitution is supreme,
We begin our search for the meaning of the phrase “infamous crime” by observing that our legislature defined “infamous crime” in 1994 to mean “a felony as defined in section 701.7 or an offense classified as a felony under federal law.” See 1994 Iowa Acts ch. 1180, § 1 (codified at
The felony–misdemeanor distinction does offer a clean bright-line rule. The benefits of such a rule are obvious, and the allure is tempting. Yet, our role is to interpret our constitution by using the language found in the constitution. We perform this role with the presumption that the drafters of our constitution were careful and thoughtful in selecting each word to convey the meaning they intended would be carried forward. If the words of the constitution do not support a bright-line rule, neither can we. Additionally, we recognize that we are dealing with a constitutional provision that disqualifies persons from voting. Ease of application does not justify a rule that disenfranchises otherwise eligible voters.2
A review of
two concepts to be coextensive, different words would not have been used. This reading is bolstered by
This analysis does not mean the legislative definition of “infamous crime” is not helpful in deciding the definition under
disenfranchisement. Cf. Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958) (looking to “the evolving standards of decency that mark the progress of a maturing society”); Ex parte Wilson, 114 U.S. at 427, 5 S. Ct. at 940, 29 L. Ed. at 93 (“What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.”). Thus, we acknowledge the legislative definition as a factor and turn to consider the meaning of the phrase “infamous crime” under
The meaning of the word “infamous” in the mid-nineteenth century was “ ‘most vile; base; detestable.’ ” Snyder, 958 N.E.2d at 780 (quoting Noah Webster, A Dictionary of the English Language 202 (rev. ed. 1850)). It captures a concept dating back more than 2000 years to ancient Greece, when “criminals who had committed certain heinous crimes were pronounced ‘infamous’ and thereafter ‘prohibited from appearing in court, voting, making speeches, attending assemblies, and serving in the army’ and thus prohibited from influencing public affairs.” Id. at 773 (quoting Walter Matthews Grant, et al., Special Project: The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 941 (1970)).
In 1839, the territorial legislature adopted a statute that declared certain persons to be “infamous.” Additionally, the statute specifically applied to voting. It stated:
Each and every person in this Territory who may hereafter be convicted of the crime of rape, kidnapping, wilful [sic] and corrupt perjury, arson, burglary, robbery, sodomy, or the crime against nature, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust, or profit, of voting at any election, of serving as a juror, and of giving testimony in this Territory.
The Statute Laws of the Territory of Iowa, Code of Criminal Jurisprudence, Tenth Div., § 109, at 182 (1839). The 1839 statute provides us with a limited window into some specific understanding of the meaning of “infamous crime[s]” of the day.
Of course, like
More directly, it appears the drafters at our 1857 constitutional convention intended to deprive the legislature of the power to define infamous crimes. The proposed 1844 Iowa Constitution had contained a provision denying the privileges of an elector to “persons declared infamous by act of the legislature.” Iowa Const. art. III, § 5 (1844) (emphasis added). This language was removed in the 1846 Iowa Constitution. See Iowa Const. art. III, § 5 (1846) (“No idiot, or insane
person, or persons convicted of any infamous crime, shall be entitled to the privileges of an elector.”). While the 1846 constitution was modeled on the 1844 constitution, historical commentary regarding 1846 convention reveals radically egalitarian and inclusive voices influenced the debate over our incipient fundamental law: “[A] strong effort [was] made to extend this political right to resident foreigners who had declared their intention of becoming citizens.” Benjamin F. Shambaugh, History of the Constitutions of Iowa 301 (1902). This suggests its infamous crimes clause was meant to apply narrowly.
The drafters at the 1857 constitutional convention did not reinsert the 1844 language. Certainly, the drafters at our 1857 constitutional convention knew how to delegate authority over elections to the legislature. Indeed, the Indiana constitutional conventions of 1816 and 1850 gave its general assembly authority to define infamous crimes. Snyder, 958 N.E.2d at 774–75; see also
As recognized by other courts, infamous crimes clauses found in many state constitutional voting provisions are properly understood as a regulatory measure, not a punitive measure. See Snyder, 958 N.E.2d at 781.
understood the importance for Iowans to have a voice in our democracy through voting, but they further understood the fundamental need to preserve the integrity of the process of voting by making sure it was not compromised by voices that were incompetent to meaningfully participate or voices infected by an infamous disposition. See Snyder, 958 N.E.2d at 781 (“The most common regulatory justification for criminal disenfranchisement provisions is that they preserve the integrity of elections.”).
Within this context and setting, the concept of disenfranchisement was not meant to punish certain criminal offenders or persons adjudged incompetent, but to protect “ ‘the purity of the ballot box.’ ” Snyder, 958 N.E.2d at 781 (quoting Washington v. State, 75 Ala. 582, 585 (1884)); see also Otsuka v. Hite, 414 P.2d 412, 417 (Cal. 1966) (adopting the justification), abrogated on other grounds by Ramirez v. Brown, 507 P.2d 1345, 1353 (Cal. 1973) (en banc), judgment rev’d by Richardson v. Ramirez, 418 U.S. 24, 56, 94 S. Ct. 2655, 2672, 41 L. Ed. 2d 551, 572 (1974). Our drafters wanted the voting process in Iowa to be meaningful so that the voice of voters would have effective meaning. Thus, disenfranchisement of infamous criminals parallels disenfranchisement of incompetent persons under
Any definition of the phrase “infamous crime” has vast implications and is not easy to articulate. However, we have said regulatory measures abridging the right to vote “must be carefully and meticulously scrutinized.” Devine, 268 N.W.2d at 623. Similarly, the Supreme Court has said measures limiting the franchise must be “ ‘necessary to promote a compelling governmental interest.’ ” Dunn v. Blumstein, 405 U.S. 330, 343, 92 S. Ct. 995, 1003, 31 L. Ed. 2d 274, 884 (1972) (quoting Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600, 615 (1969)). This context helps frame both the governmental interest at stake in protecting the integrity of the electoral process and the individual’s vital interest in participating meaningfully in their government. The definition of “infamous crime” turns on the relationship particular crimes bear to this compelling interest.
Some courts have settled on a standard that defines an “infamous crime” as an “affront to democratic governance or the public administration of justice such that there is a reasonable probability that a person convicted of such a crime poses a threat to the integrity of elections.” Snyder, 958 N.E.2d at 782; see also Otsuka, 414 P.2d at 422 (“[T]he inquiry must focus more precisely on the nature of the crime itself, and determine whether the elements of the crime are such that he who has committed it may reasonably be deemed to constitute a threat to the integrity of the elective process.”). Other courts limit the definition to a “felony, a crimen falsi offense, or a like offense involving the charge of falsehood that affects the public administration of justice.” Commonwealth ex rel. Baldwin v. Richard, 751 A.2d 647, 653 (Pa. 2000). Still other courts establish the standard at crimes marked by “great moral turpitude.” Washington, 75 Ala. at 585.
Considering the crime at the center of this case, we need not conclusively articulate a precise definition of “infamous crime” at this time. We only conclude that the crime must be classified as particularly serious, and it must be a crime that reveals that voters who commit the crime would tend to undermine the process of democratic governance through elections. We can decide this case by using the first part of this nascent definition.
Throughout our history, we have separated the seriousness of crimes by felony and misdemeanor designations. Crimes classified as felonies are serious offenses and misdemeanors are less serious. Within this framework, “infamous crime[s],” in light of its meaning throughout history, would at most extend to the area of serious crimes occupied by felonies. The concept of infamous crime is inconsistent with the concept of misdemeanor
It will be prudent for us to develop a more precise test that distinguishes between felony crimes and infamous crimes within the regulatory purposes of
Our conclusion that OWI, second offense, is not an infamous crime does not minimize its seriousness, or the seriousness of any other misdemeanor, but recognizes our framers sought only to limit the types of crimes that should disqualify a person from voting, and that limit was drawn at “infamous crime[s].” A crime that was not serious enough to be a felony a fortiori was not intended by our founding drafters to be an “infamous crime.”
Our decision today is limited. It does not render the legislative definition of an “infamous crime” under
IV. Conclusion.
We consider and reject all other claims and arguments asserted by Chiodo. The crime of OWI, second offense, is not an infamous crime under
AFFIRMED.
All justices concur except Mansfield and Waterman, JJ., who concur specially; Wiggins, J., who dissents; and Appel, J., who takes no part.
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MANSFIELD, J. (specially concurring).
While I agree that Anthony Bisignano should not be disqualified from running for state senate, I cannot join the plurality opinion. I agree with the Panel, the district court, and Iowa‘s elected representatives that felonies and only felonies are “infamous crimes” under
As the dissent correctly points out, the plurality throws out nearly a hundred years of this court‘s precedents. Yet what is its replacement? That is hard to tell.
The plurality‘s assertion that its decision is “limited” does not make it so. Let‘s review the plurality‘s standards, which it admits are “nascent.” The plurality says that only felonies falling within “the regulatory purposes of
I think most people would agree these unrefined standards basically offer no guidance at all, therefore leaving the door wide open for future litigation. Notably, Iowa‘s constitution, and the plurality opinion make no distinction between convicted felons who are presently incarcerated and those who have served their time. Thus, under the plurality‘s approach, even a person who is presently serving a lifetime-without-parole-sentence can argue that he or she should be able to vote from prison because barring him or her from voting would “undermine the process of democratic governance through elections.” When we overrule precedent that established a definite rule, we owe the public more than a welcome mat for future lawsuits.
The plurality‘s approach to whether a crime is “infamous” is an odd mix of half-hearted originalism and excessive fealty to a court decision from Indiana. Initially, the plurality draws on mid-nineteenth century sources to ascertain the meaning of “infamous.” According to this review, “infamous crime” does not mean “felony” nor is it based on the punishment for the crime. Rather, it is based on how bad the crime is. Thus, “infamous” seems to mean something like “heinous” according to this part of the plurality opinion. Accordingly, the plurality quotes an 1839 Iowa territorial law listing infamous crimes that disqualify a person from voting. The Statute Laws of the Territory of Iowa, Code of Criminal Jurisprudence, Tenth Div., § 109, at 182 (1839). Actually, this list appears to include most felonies.6 I would argue that this list, if anything, supports either of two viewpoints: (1) “infamous crime” was up to the legislature to define, or (2) “infamous crime” meant felony.
The plurality then shifts gears and moves on to out-of-state precedent, primarily a 2011 decision of the Indiana Supreme Court. See Snyder v. King, 958 N.E.2d 764 (Ind. 2011). That decision interpreted
However, toward the end of its opinion the Indiana Supreme Court largely turned away from historical analysis. Instead, it decided that
[T]he Infamous Crimes Clause was not intended to be used primarily as a retributive or deterrent mechanism of punishment. It is a cardinal principle of constitutional interpretation that our Constitution should be interpreted as a whole.
Article I, § 18, of the Constitution provides that “[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice.”Ind. Const. art. I, § 18 . Interpreting the Infamous Crimes Clause as authorizing the General Assembly to use a particular punishment solely for the purpose of exacting vindictive justice would conflict with this provision of the Indiana Bill of Rights. And we will avoid reading such a conflict into the Constitution unless the document itself clearly requires us to do so.We think instead that the Infamous Crimes Clause is properly understood primarily as a regulatory measure. While history clearly demonstrates its punitive characteristics, its primarily regulatory character is clearly demonstrated by its placement in Article II, which seeks to regulate suffrage and elections, and the justification underlying criminal disenfranchisement provisions generally.
Id. (citation omitted).
My colleagues here largely track Snyder but back off from fully embracing it. Thus, the plurality does not reach Snyder‘s ultimate conclusion that violent serious felonies like murder and kidnapping cannot disqualify a person from voting. But the plurality‘s quasi-Snyder jurisprudence has multiple problems as applied to Iowa.
First, Iowa‘s situation is different from Indiana‘s. Among other things, Iowa does not have a constitutional provision requiring that punishment be “founded on the principles of reformation.”
In addition, I think some of Snyder‘s premises are questionable. For example, I do not place much stock in the “placement” of
Third, Snyder at least deals with the question of whether people in prison can vote even if their crime is not infamous. Thus, Snyder concludes that the state can use its “police power” to deny a convicted person the right to vote during the term of imprisonment regardless of the crime committed. Snyder, 958 N.E.2d at 784–85. But Snyder cites no textual basis for this conclusion in the Indiana Constitution. Id. Instead, Snyder relies on out-of-state cases, national “consensus,” and the historical practice in Indiana. Id. Regardless of the merits of Snyder‘s reasoning, the opinion at least has the virtue of clarifying that current inmates will not be able to vote. The plurality opinion here leaves that highly important question unanswered.
Finally, whatever its flaws, Snyder does establish a somewhat clear rule of law. Current prisoners cannot vote, whereas released prisoners can vote unless their crime was akin to “treason, perjury, malicious prosecution, and election fraud.” Id. at 782, 785. My colleagues’ opinion, by going only partway on Snyder, does not pass that clarity threshold and instead fosters uncertainty.
I would grant that the plurality has done a good job of saying what the legal standard for disqualification isn‘t. It is not conviction of a felony, conviction of a misdemeanor, or conviction of a crime with the potential for incarceration in a penitentiary. However, other than the indeterminate language I‘ve quoted above, the plurality offers no further guidance as to what the standard is. As I have already argued, this standard is essentially no standard at all and will lead to more voting and ballot cases as we sort out the implications of today‘s ruling.
Having voiced my criticisms of the plurality, let me now explain how I would decide this case. As I discuss below, I think there are ample grounds for holding that our constitution, in its current form, disqualifies felons and only felons from voting and holding public office.
Our constitution gives the right to vote to all citizens,
I agree with the plurality on two points it makes about the text of
However, I think some additional lessons can be extracted from our early constitutional history. I have already mentioned the 1839 territorial legislation that more or less equates “infamous crime” for purposes of denying voting privileges with felony. See The Statute Laws of the Territory of Iowa, Code of Criminal Jurisprudence, Tenth Div., § 109, at 182; see also Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012) (indicating that in construing a provision of the Iowa Constitution, “our mission ’ “is to ascertain the intent of the framers” ’ ” (quoting Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004))). Hence, I
Article II, section 2 of the Iowa Constitution provides that electors “shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election” andarticle III, section 11 provides that senators and representative “in all cases, except treason, felony, or breach of the peace, shall be privileged from arrest during the session of the General Assembly.”- Because the word “felony” is used in these other provisions of our constitution, and “infamous crime” is used in
article II, section 5 , infamous crime cannot mean the same thing as felony.
This strikes me as a relatively weak argument. The obvious point it ignores is that the language in
As noted by my colleagues, there has been considerable water under the bridge since 1857. In 1916, we declared that any crime punishable by imprisonment in the penitentiary was an infamous crime for purposes of
Furthermore, in 1994, the legislature enacted the current law that specifically defines “infamous crime” for voting and elective office purposes to mean a felony. See 1994 Iowa Acts ch. 1180, § 1 (codified at
The previous version of
It is clear that the legislature‘s specific purpose in 2006 and 2007 was to remove offensive and outdated language from
We have long adhered to this principle as it applies to statutory amendments. “When the legislature amends some parts of a statute following a recent interpretation, but leaves others intact, this ‘may indicate approval of interpretations pertaining to the unchanged and unaffected parts of the law.’ ” State v. Sanford, 814 N.W.2d 611, 619 (Iowa 2012) (quoting 2B Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 49:10, at 144 (7th ed. 2008)); see also Jenney v. Iowa Dist. Ct., 456 N.W.2d 921, 923 (Iowa 1990); State ex rel. Iowa Dep‘t of Health v. Van Wyk, 320 N.W.2d 599, 604 (Iowa 1982). Logic dictates that this rule should apply equally to constitutional amendments.
A decision of the Kansas Supreme Court illustrates this principle. See In re Cent. Ill. Pub. Servs. Co., 78 P.3d 419 (Kan. 2003). In that case, several companies that distributed and sold natural gas, but not in Kansas, argued they were entitled to a constitutional tax exemption for their inventory of gas stored in Kansas. Id. at 422. However, under a 1992 amendment to the relevant section of the Kansas Constitution, merchants’ inventory for public utilities was denied an exemption. Id. at 424. Yet, Kansas law as of 1992 limited the statutory definition of “public utility” to companies that were engaged in transporting or distributing natural gas to, from, or within the state of Kansas, or that were engaged in storing natural gas in an underground formation in Kansas. Id. at 424–25. In concluding that this narrow statutory definition should apply, the court indicated among other things that the constitutional amendment should be construed consistently with “the statutes in existence at the time the . . . amendment was proposed and adopted.” Id. at 426. Here too, where
It was also no secret that Iowa law forbid voting by convicted felons when the proposed amendment went before the public at the 2008 general election. For example, a contemporary editorial in Iowa‘s largest newspaper said the following about the proposed revision of
It is worth thinking about whether an amendment belongs in the Constitution at all denying the vote to anyone based on diminished mental capacity, which is a relative thing. Also, in this section, the right to vote is denied to convicted felons, even those who have served their sentences, which is wrong. But those are questions for another day. For now, the language of the Iowa Constitution should be devoid of language that is seen as belittling.
See Editorial, Change Harsh Wording in State Constitution, Des Moines Register, October 31, 2008, at A14.
Personally, I agree with this editorial. I believe that convicted felons who have served their sentence and paid their debt to society ought to be able to vote, without requiring dispensation from the governor. By permanently disenfranchising convicted felons, Iowa puts itself in a small minority of three states. But my personal views do not carry weight when it comes to interpreting the
Waterman, J., joins this special concurrence.
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WIGGINS, Justice (dissenting).
I respectfully dissent. The plurality is rewriting nearly one hundred years of caselaw. I do not think we should do so at this time.
Our constitution sets the qualifications of electors as follows:
Every citizen of the United States of the age of twenty-one years,8 who shall have been a resident of this state for such period of time as shall be provided by law and of the county in which he claims his vote for such period of time as shall be provided by law, shall be entitled to vote at all elections which are now or hereafter may be authorized by law. The general assembly may provide by law for different periods of residence in order to vote for various officers or in order to vote in various elections. The required periods of residence shall not exceed six months in this state and sixty days in the county.
After giving certain persons the right to vote, the constitution disqualifies certain persons from voting.
We have consistently defined “infamous crime” under our constitution as a crime for which the legislature fixed the maximum punishment as confinement in prison. State ex rel. Dean v. Haubrich, 248 Iowa 978, 980, 83 N.W.2d 451, 452 (1957); Blodgett v. Clarke, 177 Iowa 575, 578, 159 N.W. 243, 244 (1916) (per curiam); Flannagan v. Jepson, 177 Iowa 393, 400, 158 N.W. 641, 643 (1916). When the legislature adopted the legislative scheme to have three classes of misdemeanors in
Eliminating our bright-line rule is not only unnecessary, but also dangerous. Now, we can no longer look to the crime‘s penalty to determine who can vote and who cannot vote. Rather, we now apply certain factors to make that determination. The plurality‘s approach does little to settle the law. I say this for a number of reasons.
First, I agree with the plurality that the legislature cannot write a constitutional definition of “infamous crime” by its enactment of
Second, the factors enumerated by the plurality are so imprecise that a citizen of this state who has committed a crime has no idea as to whether he or she is eligible to vote. Under the plurality‘s factor analysis, some persons convicted of a felony may be able vote, while some persons convicted of a misdemeanor may not be able to vote. The plurality‘s factor analysis adds considerable uncertainty as to who can and who cannot vote. Is a person with a conviction for operating while intoxicated third, a felony, disqualified to vote? On the other end of the spectrum, is a person with a conviction for aggravated misdemeanor
Finally, our election officials will have the same problems as our citizens in determining who can and who cannot vote. This uncertainty will lead to greater election day problems and the casting of an inordinate amount of provisional ballots. See
For these reasons, I see no reason why at this time we should redefine the term “infamous crimes.” Today I fear we are abandoning a seaworthy vessel of precedent to swim into dangerous and uncharted waters.
Notes
Erika Wood, Brennan Center for Justice, Restoring the Right to Vote 4 (2009), available at http://www.BrennanCenter.org/Publication/Restoring-Right-Vote+ (last visited Apr. 15, 2014).Denying the right to vote to people who are living and working in the community runs counter to the modern ideal of universal suffrage. Under that ideal, each citizen is entitled to cast one vote, and each vote counts the same regardless of who casts it. Voting thus becomes a powerful symbol of political equality; full citizenship and full equality mean having the right to vote.
The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same . . . .
H.J. Res. 5, 81st G.A., 2nd sess. (2006). There is no indication in the official legislative history that the legislature considered the clause ofThis joint resolution proposes an amendment to the Constitution of the State of Iowa relating to persons who are disqualified from voting or holding elective office. The resolution removes the words “idiot” and “insane” from the constitutional provision and substitutes the phrase “mentally incompetent to vote“.