DES MOINES, Iowa (CN) — Iowa state officials urged a federal judge not to block county election officials from challenging the ability of more than 2,000 Iowans identified by the state as possible non-citizens from casting ballots on Nov. 5 unless they can prove their citizenship.
Iowa Secretary of State Paul Pate sent a memo to election officials Oct. 22, just two weeks before the election, with the names of 2,176 individuals on Iowa’s voter rolls who at some point identified themselves as noncitizens on driver’s license applications, and directed the officials to challenge those voters on Election Day.
Five Iowans whose names were on that list but who have since become naturalized citizens sued Pate in federal court Oct. 30, saying the directive to local election officials violates their constitutional right to vote and their rights of equal protection and due process.
The plaintiffs seek a temporary restraining order and preliminary injunction declaring the secretary’s directive to local election officials violates federal law and the Constitution and ordering him to rescind the list of voters to be challenged.
The state filed a resistance to the plaintiffs’ motion for an injunction ahead of Friday’s hearing before U.S. District Judge Stephen Locher.
“The secretary of state has provided reasonable suspicion” that registered voters on the list he sent to county officials Oct. 22 are not U.S. citizens, Iowa Solicitor General Eric Wessan told Locher Friday. Election officials have the right to challenge a voter at the polls under state and federal law, Wessan said. “There are hundreds of people on the USCIS [U.S. Citizenship and Immigration Service] list who are not eligible to vote” in Iowa, but the federal agency would not share the list with Iowa.
Wessan stressed that none of those on the secretary’s list have been removed from the rolls, and that Iowa law requires local election officials to challenge any person attempting to vote if the official knows or suspects the prospective voter is not eligible to vote, including not being a U.S. citizen. Challenged voters can cast a provisional ballot that will be counted if they can prove they are eligible to vote.
Jesse Linebaugh, an attorney with the Des Moines office of Faegre Drinker Biddle & Reath representing the plaintiffs, argued that the secretary’s directive will lead to disparate treatment of naturalized citizens whose ballots would be challenged at the polls.
“The state of Iowa is treating naturalized citizens differently” than citizens who were born in the United States, he said. The secretary’s list came from less than 10 years of Iowa Department of Transportation driver’s license records where some applicants “checked a box” at the time saying they were not a U.S. citizen. Meanwhile, he said, thousands of Iowans become naturalized citizens every year.
Judge Locher asked Solicitor General Wessan why the state waited until late this summer to begin investigating the citizenship issue. “Why only in late summer of 2024 to do something about this” after “years and years” of discussion about noncitizens voting, Locher asked. “Don’t you think some might say this is a little bit politically opportunistic?”
Wessan was not able to explain the timing of the investigation Friday, but he said “a lot of care was put into this as possible to be apolitical.”
The judge also pressed both parties on the question of U.S. Supreme Court rulings saying courts should avoid disturbing election procedures close to an election.
In response, Linebaugh noted that a theme in the state’s brief opposing an injunction is that the fact that this case is being heard at the “last minute is the result of something we have done,” which he disputed. “We are here because of what they did on Oct. 22.”
Locher said he expects to rule on the motion for a temporary restraining order and injunction sometime Sunday.