Five in Iowa sue over ballots

Suit seeks to prevent votes from counting

By LYNN CAMPBELL
Des Moines REGISTER STAFF WRITER
October 26, 2004

Iowa's election laws were thrown into the court system Monday when five Des Moines-area Republicans sued election officials in an effort to prevent ballots from being accepted from voters who go to the wrong precinct.

With the lawsuit, Republicans are challenging the opinion of Iowa Attorney General Tom Miller, a Democrat who said Friday that Iowans who vote in the correct county but wrong precinct should have their votes for president and Congress counted.

"Such action, if taken by defendant election officials, would not only be unlawful, but would produce Election Day chaos in Iowa, increased voting irregularities, confusion, uncertainty, and would delay or prevent an accurate count of all valid ballots," the Republicans said.

The lawsuit, filed in Polk County District Court, involves the issue of "provisional ballots," which have spurred lawsuits nationwide. Such ballots are used when voters' names do not appear on voter registration rolls.

The legal action came the same day that leaders of the Republican Party of Iowa threatened to file their own lawsuit on a separate issue and called for Iowa Secretary of State Chet Culver's resignation. The Republicans accused Culver of illegally accepting registration forms from voters who failed to check a box confirming U.S. citizenship.

Culver, a Democrat, dismissed the criticism as politics.

"It is unfortunate and irresponsible that earlier today the Republican Party tried to pull a partisan stunt, and went out of its way to create a myth that this office is doing something other than following the letter of the law," Culver said. "That was clearly a phony political ploy. I feel Iowans deserve better. My commitment as state commissioner of elections is to ensure that every eligible vote counts."

Monday's lawsuit was filed by Republicans Dean Brooks, 55, of West Des Moines; Patricia Schultz, 36, of Des Moines; Elizabeth Isaacson, 71, of West Des Moines; Beverly Poncin, 66, of Windsor Heights; and Mark Havlicek, 34, of Windsor Heights.

"I just was upset when I read the articles in the paper," said Isaacson, a former chief clerk of the Iowa House who said she thinks people should vote in their own precinct. "I think it's important that our election laws, Iowa laws, be followed. I don't think the secretary of state is doing that."

Representing the five Republicans is Des Moines attorney Richard Sapp, the same attorney who represented Republican legislative leaders in challenging Democratic Gov. Tom Vilsack's item vetoes of an economic stimulus bill last year.

Monday's lawsuit asks for an immediate hearing and an order to stop out-of-precinct ballots from being accepted. A hearing has been scheduled for Wednesday before Polk County District Judge Arthur Gamble.

Iowa joins several other states where the courts are being asked to decide whether votes cast in the wrong precinct should count.

Judges in Missouri, Colorado and Florida have ruled that such ballots should not be accepted. Over the weekend, the 6th U.S. Circuit Court of Appeals effectively nullified rulings in Ohio and Michigan that would have allowed out-of-precinct ballots.

That leaves Iowa election officials out of step, Republicans said.

"I think Tom Miller and Chet Culver have conducted this election in a stunningly partisan manner," said Gentry Collins, deputy chairman of the Republican Party of Iowa. "They are now standing alone nationwide in saying that you ought to be able to show up at a precinct in which you do not live and you are not registered to vote and cast a ballot."

But Brenda Wright, managing attorney for the National Voting Rights Institute in Boston, said 13 states will count ballots for the federal election that are filed in the correct county but wrong precinct. She cited a survey taken on the issue by Demos, a national voting rights organization based in New York.

Meanwhile, Republicans alleged Monday that Culver is violating state and federal election laws by deciding last week that he will allow Iowa voters to bypass the requirement that they check a box verifying citizenship on voter registration forms.

"Voting in Iowa has been going on since September 23rd and now, in the middle of the game, we're seeking to change the rules," Collins said. "My view is that this is a partisan attempt by a partisan election official to rig the election."

Senate President Jeff Lamberti, an Ankeny Republican, called for Culver to step down. House Speaker Christopher Rants, a Sioux City Republican, said he shared Lamberti's concerns.

"Apparently, they think they're going to lose Iowa and they want to throw this thing to the courts," Rants said of Democrats. "They can't win under the rules as they are today, so they want to change the rules. I've lost a lot of confidence in the secretary of state."

Culver dismissed Republicans' criticism as "pathetic partisan blather." Members of his staff repeated their commitment to making sure that every eligible vote counts.

"What we're trying to do is interpret the laws fairly and give people the opportunity to vote - and where there's some discrepancy or lack of clarification, get the legal clarification we need," said Iowa Deputy Secretary of State Charles Krogmeier.

Miller advised election officials last week to accept registration forms of an estimated 364 Iowans who registered to vote by mail and forgot to check the citizenship box but signed an affidavit certifying their eligibility to vote.

His opinion is consistent with the way Colorado, Michigan, Ohio, Washington and Wisconsin have interpreted changes in the federal Help America Vote Act, approved by Congress in the wake of the controversial 2000 presidential election.

But the Iowa Voter Registration Commission on Monday refused to go along with Miller's opinion and voted 2-2 against changing the rules regarding the citizenship box. Two Republicans on the panel - Collins and Guthrie County Auditor Janet Dickson - voted against the measure, while Krogmeier and Jean Hessburg, executive director of the Iowa Democratic Party, voted in favor of it.

"The federal and state law is not clear," Hessburg said. "The Iowa voter registration form could be construed as redundant. The check box and the signature at the bottom both denote the same thing. . . . It is not partisan electioneering to clarify the rules."

Krogmeier said that, despite Monday's vote, election officials still plan to follow Miller's opinion and include voters who forgot to check the citizenship box on the registration forms.

"The opinion still stands and that's what we're taking as law," Krogmeier said. "So these people will be able to vote."

That angered Republicans, who said election officials are violating state law and administrative rules.

"The attorney general's opinion does not have the force of law," Collins said.

About 20 Republicans protested Monday outside the Lucas State Office Building, where the commission met.