IOWA CITY, Iowa — An Iowa prosecutor said she will pursue pending cases against convicted felons accused of voting illegally in 2012 despite a new Iowa Supreme Court ruling that makes it unclear whether they lost their voting rights in the first place.
Critics such as the American Civil Liberties Union say the cases are on shaky ground following Tuesday's ruling in which justices failed to agree on which felony convictions trigger disenfranchisement for offenders. They say the uncertainty will make it even more difficult for prosecutors to prove intent and open the door for constitutional challenges.
But Black Hawk County prosecutor Linda Fangman downplayed the ruling's impact Thursday, saying the cases against six Waterloo felony offenders she's prosecuting would "proceed as is." Trial dates were being set Friday. A seventh, Michelle Bruno, intends to plead guilty Monday, court records show.
Iowa justices agreed 5-1 that aggravated misdemeanor crimes do not disenfranchise offenders, overturning a century of court precedent. But they split 3-3 on whether all felonies, or just an undefined number that are linked to election integrity, should disqualify offenders.
The ruling threw into doubt one of the nation's strictest policies for disenfranchising convicts.
Voting rights groups and U.S. Attorney General Eric Holder have criticized Iowa's policy as too harsh because, under Republican Gov. Terry Branstad, it has become one of four states to require former felons to apply to the governor to have voting rights restored, a process few complete. And an investigation championed by Iowa's Republican elections administrator has led to charges against several former offenders who voted.
The seven Waterloo residents were charged with registering and voting in the 2012 presidential election despite having committed prior felonies. Their status as ineligible felons wasn't caught because workers at their polling places, unlike others in the county, didn't have electronic systems that would identify offenders. Fifteen felons were identified at other precincts and were not prosecuted.
In Fairfield, Jefferson County Attorney Timothy Dille said Wednesday he didn't think the ruling would impact his 16-month-old case against Cheri Rupe, which is scheduled for trial next month. Like the others, she's charged with election misconduct, which carries up to five years in prison.
There may be additional consequences for Bruno, whose probation was to expire in March stemming from a 2009 conviction for forging checks. Parole officials said the election misconduct charge was a violation and asked that Bruno, a fast-food worker paying $40 monthly toward restitution, "be brought before the court to explain her actions" Monday.
The cases are among 26 filed during a voter fraud investigation pursued by Republican Secretary of State Matt Schultz and the Division of Criminal Investigation.
Even before Tuesday's ruling, critics argued the cases against felons were unfair because state policy is confusing.
Jurors last month took 40 minutes to acquit Kelli Jo Griffin, the first to challenge such a case at trial. Griffin voted in an uncontested municipal election in tiny Montrose, saying she mistakenly believed her rights were restored when she left probation on a 2008 drug conviction. That had been state policy from 2005 to 2011 under Democratic governors. But Branstad rescinded that policy in 2011, reinstating a process of applying to the governor that only 40 offenders out of thousands have completed in the last three years.
Jurors said Griffin, a mother of young children who had faced up to 15 years in prison, made an honest mistake.
Tuesday's Supreme Court ruling injected more confusion.
The lead opinion supported by three justices ruled that not all felonies were "infamous crimes" — the wording used in the Iowa Constitution — which strip offenders of the right to vote and hold office. They said the constitution only disenfranchised offenders whose participation would undermine the democratic process, and that they'd define which felonies qualify in future cases.
Two justices ruled that all felonies trigger disenfranchisement, saying the lead opinion "unnecessarily introduced uncertainty and invited future litigation over voting rights." Dissenting Justice David Wiggins said the court should've kept its longstanding policy of defining "infamous crimes" as those that may result in imprisonment — all felonies and some misdemeanors. The seventh recused himself.
Some lawyers argue the lead opinion's impact is limited because it didn't have support from a court majority of four justices and didn't strike down an election law that defines "infamous crimes" as all felonies. Based on that, elections officials will continue to bar from voting all felons whose rights haven't been restored.
But Rupe's attorney, Victoria Siegel, said she'll now challenge that law, arguing Rupe's prior conviction doesn't "add up to a conclusion that her vote negatively impacts democracy."
"Therefore, the law is unconstitutional as applied to her," Siegel said.
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