(Des Moines)—Secretary of State Matt Schultz asked a Polk County judge to deny a stay and dismiss a lawsuit seeking to block the state from enacting emergency rules which facilitate the state’s access to a federal immigration status database.
The lawsuit, filed August 8th by the American Civil Liberties Union (ACLU) of Iowa and League of United Latin American Citizens (LULAC) of Iowa, challenges the legality of two emergency administrative rules that Schultz (pictured) enacted on July 20th.
The rules implement Iowa’s access to the Systematic Alien Verification for Entitlements (SAVE) program database, which is maintained by the United States Citizenship and Immigration Service (USCIS), an agency within the U.S. Department of Homeland Security. The SAVE program enables governmental entities to accurately determine an individual’s immigration status.
In March, based on a comparison of Iowa Department of Transportation records and state voter registration records, Schultz determined that more than 3,500 foreign nationals registered to vote in Iowa since 2008, and about 1,200 voted in the 2010 general election. Concerned about potential voter fraud, Schultz enacted emergency rules consistent with federal requirements to enable the state’s access to the SAVE database, to ensure the accuracy of state records on individuals’ immigration status.
“The state’s ability to access this federal database is a very important safeguard for anyone whose immigration status may have been wrongly called into question,” Schultz said. “Since this can impact something as important as someone’s right to vote, I think it’s vital to make sure that we have accurate information before beginning the process of removing anyone from the voter registration rolls. That’s why I’m seeking this data.”
In a response filed Thursday in Polk County District Court, Schultz wrote that due to the time constraints of the upcoming general election and the statutory deadline for challenging voter registration, he determined that good cause existed to forego notice and public comment on the rules he implemented to facilitate the state’s access to the SAVE program.
“I determined that the rules provided a public benefit so as to waive the thirty-five day publication period,” Schultz wrote in an affidavit. “For individuals suspected of being illegally registered to vote it provides a number of safeguards to ensure that my office is proceeding on valid information, and it provides notice and opportunity for an individual to be heard prior to removal from the registration records,” he added. “For all other voters, the rules provide a transparent, uniform system for investigating and removing ineligible voters from registration records.”
According to the state’s response to the lawsuit, there was not enough time between July 17, when the U.S. Department of Homeland Security approved the state’s application for access to the SAVE database, and the November 6 general election to promulgate new rules consistent with the new federal requirements. Non-emergency rulemaking procedures take a minimum of 108 days, and typically last as long as six months. In addition, state law prevents removal of an individual from the registration records unless a complaint is filed more than 70 days prior to the election. For the upcoming November election that deadline is August 28.
“Once an election occurs and someone has cast their vote, we can’t unring that bell,” Schultz said.
Schultz has also proposed permanent administrative rules, which mirror the emergency rules, through the standard notice and comment process.
Attorney General Tom Miller, who is defending Schultz in the lawsuit, said the state is seeking a balance between ensuring voting integrity and preventing voter suppression. “We’re working together here to make sure that people who are not eligible to vote don’t vote,” Miller said. “But just as important, we’re also making sure that we have extra safeguards in place that protect the rights of those who are entitled to vote. It’s very important that we not deter or suppress anyone from voting if they’re truly eligible to cast a vote.”
In response to the lawsuit asking a judge not to grant the plaintiffs an injunction or stay, the state argued that the petitioners failed to meet the necessary legal grounds for a stay.
According to the state’s response, “(The) rules provide voters with a clear, uniform procedure for identifying, investigating, and removing ineligible voters from registration records. Staying enforcement of these rules will remove transparency from the process and compromise voters’ faith in the voter registration system. Staying enforcement of these rules will undermine voter confidence in the Secretary and the State’s ability to conduct free and fair elections.”
Court documents available here: