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While the Iowa Supreme Court got its decision in LULAC v. Pate right, it was a narrow vote. The dissenting opinion in the 4-3 decision has drawn scrutiny based on some “weaknesses,” according to Derek T. Muller, a professor of Law at the University of Iowa College of Law.

Of note, two of the three justices who joined the dissenting opinion were appointed by Gov. Kim Reynolds. Justice Dana Oxley wrote the dissenting opinion. Chief Justice Susan Christensen sided with Oxley in the dissent. Justice Brent Appel, who was appointed to the court by Gov. Tom Vilsack, was the third member to reject the majority’s ruling.

At issue was election law put in place this year by the Iowa legislature in response to COVID-19. County auditors were authorized to mail absentee ballot request forms to every voter. County auditors, however, were prohibited from pre-populating confidential information. They also were not allowed to correct errors or omissions on submitted forms.

“While the legislature dramatically increased the number of absentee ballot request forms circulating the state, it added modest fraud prevention measures to ensure only voters completed the information,” Muller wrote.

The 4-3 decision related to voters who fail to complete the form or make an error. County auditors have been allowed to correct mistakes or omissions in the past. However, due to the increased number of ballot request forms in circulation, the legislature outlawed that activity.

At issue was the filing deadline for an absentee ballot. Iowa law requires requests to be submitted 10 days prior to Election Day.

Muller wrote a scathing review of the dissenting opinion.

The dissenting opinion noted that, historically, almost 30 percent of voters in the general election request their absentee ballot in the final four days.

“The deluge is just getting started,” the dissenting opinion said. “Only time will tell if they will keep up.”

According to Muller’s piece, only about eight percent of requests came in the last four days. There was no deluge of requests and county auditors were able to keep up just fine.

There were 842,459 absentee ballots requested as of Oct. 20 — four days before the deadline. The dissent predicted 1.2 million absentee requests. The final tally — 915,711.

In addition, the dissenting opinion was guilty of aggregating the problem, Muller wrote.

“In virtually all Iowa counties, there has been no difficulty returning absentee ballot requests,” he said. “Instead, in two counties, Johnson and Woodbury, had previously violated state law under a unanimous recognition of the Iowa Supreme Court in submitting invalid absentee ballot requests to voters earlier in the election cycle.”

To summarize, Muller wrote there were several factual errors in the dissenting opinion. They relied on “weak expert testimony” rather than existing facts. They also made weak inferences from the existing factual record.

Muller also wrote that the dissenting opinion is also “curious” about how to examine the burdens on voters.

The dissenting opinion even went as far to point out that “one might forget we’re even in the midst of a historic global pandemic.”

To be fair, the legislature was aware of the pandemic when the law was penned.

Nonetheless, it’s an interesting dissenting opinion to read from Oxley and Christensen. Iowans should be able to expect better — especially from the Chief Justice.

Christensen is up for her retention vote this year. And this dissenting opinion has altered how some Iowans are approaching that question on their ballot.

Jacob Hall

Author: Jacob Hall