Amended October 25, 2016 Kelli Jo Griffin v. Paul Pate, in His Official Capacities as the Secretary of State of Iowa, and Denise Fraise, in Her Official Capacities as the County Auditor of Lee County, Iowa

• Court: Supreme Court of Iowa
• Decided: June 30, 2016
• Docket: 15–1661
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 15–1661

Filed June 30, 2016

Amended October 25, 2016

KELLI JO GRIFFIN,

Appellant,

vs.

PAUL PATE, In His Official Capacities as the Secretary of State of Iowa, and DENISE FRAISE, In Her Official Capacities as the County Auditor of Lee County, Iowa,

Appellees.

Appeal from the Iowa District Court for Polk County, Arthur E.

Gamble, Judge.

Claimant appeals district court ruling holding her drug conviction

fell within the scope of “infamous crime” as used in article II, section 5 of

the Iowa Constitution. AFFIRMED.

Rita Bettis of ACLU of Iowa Foundation, Des Moines, and Julie A.

Ebenstein and Dale E. Ho of ACLU Foundation, Inc., New York,

New York, for appellant.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, Meghan L. Gavin, Assistant Attorney General, and Michael

Short, Lee County Attorney, for appellee. 2

Gary D. Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,

for amicus curiae Polk County Auditor Jamie Fitzgerald.

Coty R. Montag, Washington, D.C., John B. Whiston of Clinical

Law Programs, University of Iowa, Iowa City, until withdrawal, and then

John S. Allen of Clinical Law Programs, University of Iowa, Iowa City,

and Christina A. Swarns, Angel S. Harris, and Joshua A. Rosenthal,

New York, New York, for amicus curiae The NAACP Legal Defense &

Educational Fund, Inc.

Alan R. Ostergren, Muscatine County Attorney, for amicus curiae

Iowa County Attorneys Association.

Mark McCormick of Belin McCormick, P.C., Des Moines,

Carmen Beauchamp Ciparick of Greenberg Traurig, LLP, New York,

New York, and Myrna Pérez of Brennan Center for Justice at NYU School

of Law, New York, New York, for amicus curiae The Iowa League of

Women Voters.

Gordon E. Allen, Johnston, for amicus curiae Citizens United for

Rehabilitation of Errants.

Joseph C. Glazebrook of Glazebrook, Moe & Hurd, LLP,

Des Moines, for amicus curiae Iowa veterans.

Kristi L. Harshbarger, West Des Moines, for amicus curiae Iowa

State Association of Counties. 3

CADY, Chief Justice.

This appeal requires us to decide if the crime of delivery of a

controlled substance is an “infamous crime” under the voter

disqualification provision of the Iowa Constitution. The district court

held the crime is an infamous crime, and a conviction thereof disqualifies

persons from voting in Iowa. Following the analysis we have used in the

past to interpret provisions of our constitution, we agree and affirm the

judgment of the district court.

The term “infamous crime” was generally recognized to include

felony crimes at the time our constitution was adopted. This meaning

has not sufficiently changed or evolved to give rise to a different meaning

today. In addition, unlike some past cases when we have interpreted

provisions of our constitution, the facts and evidence of this case are

insufficient to justify judicial recognition of a different meaning.

Constrained, as we must be, by our role in government, we conclude our

constitution permits persons convicted of a felony to be disqualified from

voting in Iowa until pardoned or otherwise restored to the rights of

citizenship. This conclusion is not to say the infamous-crime provision

of our constitution would not accommodate a different meaning in the

future. A different meaning, however, is not for us to determine in this

case. A new definition will be up to the future evolution of our

understanding of voter disqualification as a society, revealed through the

voices of our democracy.

I. Background and Proceedings.

Kelli Jo Griffin is an Iowa resident. She is also a citizen of the

United States. She is forty-two years old. Griffin engaged in criminal

conduct that resulted in a 2008 conviction for the crime of delivery of

100 grams or less of cocaine in violation of Iowa Code section 4

124.401(1)(c)(2)(b) (2007), a class “C” felony. She was sentenced by the

district court to a suspended term of incarceration and given five years’

probation. 1 Griffin successfully discharged her sentence on January 7,

2013.

On November 5, 2013, Griffin registered to vote and cast a

provisional ballot in a municipal election in Montrose, Iowa. Denise

Fraise, the Lee County auditor, subsequently determined Griffin was not

eligible to vote due to the 2008 felony conviction, and rejected her ballot.

Griffin was charged and prosecuted with perjury for registering and

voting in the November 5 election. She was acquitted of this crime

following a jury trial.

On November 7, 2014, Griffin filed a petition in district court

against the governor of Iowa, the secretary of state of Iowa, and county

auditor Fraise. The petition asked the court to declare that her felony

conviction did not disqualify her under the Iowa Constitution from

voting, and it sought other relief in the form of an injunction and

mandamus to recognize and protect her right to vote.

The district court dismissed the governor from the lawsuit, and the

case proceeded to a summary judgment hearing. The court held Griffin

had been disqualified from voting when she was convicted of a felony and

further found the county auditor properly rejected her ballot. The

1Griffin was informed by her attorney at sentencing that her voting rights would automatically be restored after discharge of her sentence. At that time, an Executive Order signed by Governor Thomas J. Vilsack was in effect, which provided for the automatic restoration of the right to vote after discharge from a felony sentence. However, on January 14, 2011, Governor Terry E. Branstad issued a new Executive Order rescinding the automatic restoration process and replaced it with a process that considered any restoration of voting rights for convicted felons on a case-by-case basis. In each case, the convicted felon is required to initiate an application requesting the restoration of rights. 5

district court rejected her claim that her particular felony conviction was

not the type of conviction that disqualified a person from voting. It also

rejected her claim that the process to restore voting rights violated her

due process rights under the Iowa Constitution.

Griffin exercised her right to ask this court to review the decision of

the district court. On appeal, she argues her felony conviction did not

disqualify her under the constitution from the privileges of an elector and

the voter registration laws that exclude convicted felons who have not

had their rights restored from voting are invalid and constitute a

violation of her due process rights. Her due process claim is dependent

on her predicate argument that her felony conviction did not disqualify

her from voting under the constitution.

II. Standard of Review.

Summary judgment rulings are reviewed for correction of errors at

law. Baker v. City of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). If the

only concern is the legal consequences of undisputed facts, we resolve

the matter on summary judgment. Id. Constitutional challenges are

reviewed de novo. Zaber v. City of Dubuque, 789 N.W.2d 634, 636 (Iowa

2010).

III. Right to Vote.

Voting has traditionally been viewed in our democratic society as a

basic and fundamental right of citizenship. Chiodo v. Section 43.24

Panel, 846 N.W.2d 845, 848 (Iowa 2014) (plurality opinion). In our

representative form of governing, it serves to give a voice to the people.

Id. This voice is as important to the democracy as it is to those the

democracy governs.

Our constitution establishes the right to vote, but not among those

rights enumerated in our bill of rights. Iowa Const. arts. I–II. Our 6

founders chose to address voting in a separate article of the constitution

captioned as both a right and a privilege. Id. art. II, §§ 1, 5. The view

that voting is a privilege emanates from the constitutional limitations

placed on electors. Id. §§ 4–5. Electors must be citizens of the

United States and residents of Iowa. Id. §§ 1, 4. Additionally, otherwise-

qualified electors can be disqualified from voting. Under our

constitution, a “person adjudged mentally incompetent to vote or a

person convicted of any infamous crime shall not be entitled to the

privilege of an elector.” Id. § 5. Thus, voting exists as a fundamental

right for people who meet the constitutional qualifications of an elector

and are not disqualified by adjudication of incompetency or conviction of

an infamous crime. Id. §§ 1, 5.

IV. Role of the Court.

The sole issue in this case is whether the felony crime of delivery of

a controlled substance is an infamous crime. Under our system of

governing, this issue is now a question for this court to decide. The

legislature enacted a statute in 1994 defining an infamous crime as any

felony. 1994 Iowa Acts ch. 1180, § 1 (codified at Iowa Code § 39.3(8)

(2013)). 2 Yet under our democracy, people have the right to challenge

the constitutionality of a legislative enactment that directly affects them,

and the judicial branch of government has the responsibility to decide

the question. In Iowa, that responsibility ultimately falls to this court.

V. Analytical Framework.

Our task is to interpret our constitution to decide if it rendered

Griffin ineligible to vote and, in turn, permitted the county auditor to

2“ ‘Infamous crime’ means a felony as defined in section 701.7, or an offense

classified as a felony under federal law.” Iowa Code § 39.3(8). 7

reject her ballot. We must decide if the felony crime of delivery of a

controlled substance is an infamous crime.

In Chiodo, we recognized we had never developed a comprehensive

analysis to determine the meaning of the infamous-crime

disqualification. 846 N.W.2d at 851. It was unnecessary at that time,

however, to conduct the in-depth analysis needed to articulate such a

standard. 3 The crime claimed to be infamous in Chiodo was a

misdemeanor, and we were able to resolve the dispute under a standard

that only went so far as to exclude misdemeanor crimes from the

meaning of infamous crimes. Id. at 856–57. We understood the limited

nature of the opinion and saved a more complete analysis for a later

date. Id. at 857. Notwithstanding, the approach taken by the plurality

opinion was not out of line with our careful approach in interpreting our

constitution. We have often found it wise to take incremental steps in

developing constitutional law.

In taking the next step forward today to develop a more complete

framework to interpret the infamous-crime language, we are drawn to the

approach historically taken by courts when called upon to interpret the

meaning of constitutional phrases that necessarily embody social

judgments that evolve over time. This approach has allowed courts, for

example, to usher the “cruel and unusual punishment” clause from

generation to generation as views of punishment evolve. See generally

Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958)

3Chiodo was an expedited appeal that traveled through the appellate process

with unprecedented speed. The expedited appeal was necessary to meet the deadline for printing ballots prior to the pending election. The notice of appeal from the district court decision was filed on April 2, 2014, and we filed our opinion thirteen days later on April 15, 2014. During this thirteen-day period, the attorneys prepared and filed briefs, oral arguments were held, and three opinions were written. 8

(discussing the history and evolution of the Eighth Amendment to the

United States Constitution). The analysis starts with the understanding

that the meanings of these constitutional doctrines are not necessarily

static, and it instead considers current prevailing standards that draw

their “meaning from the evolving standards . . . that mark the progress of

a maturing society.” Id. at 100–01, 78 S. Ct. at 598, 2 L. Ed. 2d at 642.

Thus, the analysis considers the objective indicia of the standards of

society as expressed in legislative enactments and other pronouncements

and those standards gleaned from the text, history, meaning, and

purpose of the constitutional phrase. Graham v. Florida, 560 U.S. 48,

61, 130 S. Ct. 2011, 2022, 176 L. Ed. 2d 825, 837 (2010). Like the cruel

and unusual punishment clause, the concept of infamy is not locked into

a past meaning, but embodies those judgments that reflect its meaning

today. Our founders utilized infamy as a concept to govern the

disqualification of voters and knew it would ultimately be defined by the

prevailing standards of each generation. Community standards exist to

shape these constitutional principles until they evolve into a new

standard or it is determined they are no longer supported by our evolving

knowledge and understanding. This approach reveals the enduring

strength of our constitution.

Accordingly, we follow the constitutional approach we have

followed in other cases of constitutional interpretation to decide the

meaning of an infamous crime today. We begin by looking back to review

the history of infamy to gain a better understanding of the concept as we

apply it in this case.

VI. History of Infamy.

A. Common Law History. The concept of infamy originated in

ancient Greece and Rome. See Mirjan R. Damaska, Adverse Legal 9

Consequences of Conviction and Their Removal: A Comparative Study, 59

J. Crim. L. Criminology & Police Sci. 347, 351 (1968) [hereinafter

Damaska]. It described the loss of various rights of citizenship

associated with the punishment for certain heinous crimes or moral

turpitude. Id. Infamy was a “civic disability, conceived consciously as

based on a moral imperfection.” A.H.J. Greenidge, Infamia: Its Place in

Roman Public and Private Law 13 (Oxford, Clarendon Press 1894).

Different levels of infamy existed, from suspension of voting rights to

testimonial disqualification. Id. at 6. Thus, infamy was a moral censure

pronounced by the government as a result of acts of moral turpitude. Id.

at 18–19, 37.

The concept of infamy was absorbed into the canon law of the

church and from there disseminated into the laws in Europe. See

1 Julius Goebel, Jr., Felony and Misdemeanor: A Study in the History of

English Criminal Procedure 70–73 & nn.17–22 (1937). Indeed, “the

infamy notion be[came], for both church and state, basic to their

schemes of law enforcement, and eventually to the whole structure of

human relationships.” Id. at 73. In some countries during the Middle

Ages, the use of publicly degrading punishments like the pillory resulted

in infamy. Damaska, 59 J. Crim. L. Criminology & Police Sci. at 351. In

France, infamy eventually developed into the loss of civil rights, including

the exclusion from public office, deprivation of the right to vote or be

elected, disqualification from testimonial capacity, disqualification from

acting as guardian or conservator, and prohibition from bearing arms or

serving as a teacher. Id. at 352–53.

By the eighteenth century, English common law recognized two

kinds of infamy—one respecting the mode of punishment and the other

the future credibility of the person. William Eden, Principles of Penal 10

Law ch. 7, § 5, at 61 (3d ed. London, B. White 1772). The law expressed

the notion that “the stamp of ignominy [was] . . . [the] best instrument for

the promotion of morality, and the extirpation of vice.” Id. § 2, at 57.

Infamous punishments included corporal punishments—“affecting the

body and publicly inflicted”—and “degradations from titles of honour,

civil incapacities, brandings, and public exhibitions of the offender”; they

were to be limited to “offences infamous in their nature.” Id. § 3, at 58–

59. The stamp of infamy and accompanying civil incapacity served both

a retributive goal by depriving those who break society’s rules of society’s

privileges and a deterrent goal by the stigmatizing effect of the

humiliation and isolation offenders suffered in small communities.

Howard Itzkowitz & Lauren Oldak, Note, Restoring the Ex-offender’s Right

to Vote: Background and Developments, 11 Am. Crim. L. Rev. 721, 726–

27 (1973).

A person’s position in society depended in part on their character

and individual worth, and a bad character by itself was sufficient to

incapacitate a person’s ability to swear an oath. Diane L. Zimmerman,

Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy

Tort, 68 Cornell L. Rev. 291, 327–28 (1983). Without the ability to swear

an oath, the person could not participate in legal proceedings as a

plaintiff, a witness, or even to clear himself when charged. Id. at 328.

Those deemed infamous suffered civil degradation by losing the rights of

citizenship such as “the right to testify in court, bring civil prosecution,

serve on juries, hold public office, or enlist in the army.” Pippa Holloway,

Living in Infamy: Felon Disfranchisement and the History of American

Citizenship 3–4 (2014) [hereinafter Holloway].

The crimes that fell into the infamous category at common law

were treason, felony, and the crimen falsi. 2 Francis Wharton, A Treatise 11

on the Criminal Law of the United States § 758, at 416 (4th rev. ed.,

Phila., Kay & Bro. 1857) [hereinafter Wharton 1857]. It is helpful to

consider the meaning of each category as developed over time. Treason

today is generally associated with actions taken expressly against the

state by attempting to overthrow the government or aiding its enemies.

See U.S. Const. art. III, § 3, cl. 1; Iowa Const. art. I, § 16; Treason,

Black’s Law Dictionary (10th ed. 2014). However, when English common

law was still developing, two levels of treason were set in a fourteenth

century statute: high treason and petty (or petit) treason. Theodore F.T.

Plucknett, A Concise History of the Common Law 443 (5th ed. 1956)

[hereinafter Plucknett]; see also 4 William Blackstone, Commentaries

*75–76 [hereinafter Blackstone]. The petty treasons related to conspiring

against one’s liege lord, specifically the killing of a husband by his wife, a

master by his servant, or a prelate by his subject. Plucknett, at 443; see

4 Blackstone, at *75. These petty treasons have since been absorbed

into the murder category of felonies and are no longer designated as

treasons. See 1 Wharton 1857 § 1, at 111. High treason included:

plotting the death of the king, queen, or heir; violating the king’s wife, his

oldest unmarried daughter, or his heir’s wife; taking up arms against the

king or aiding his enemies; counterfeiting the great seal; counterfeiting

money; and slaying the chancellor, treasurer, or judges while sitting in

court. 4 Blackstone, at *76–85; Plucknett, at 443. All high treason was

punishable by a torturous death. 4 Blackstone, at *92–93.

At common law, the next level of offense down from treason was

felony. “All treasons, therefore, strictly speaking, are felonies, though all

felonies are not treason.” Id. at *95. In the middle ages, the list of

felonies was short and narrowly defined. Generally, felonies only

included “murder, manslaughter, arson, burglary, robbery, rape, 12

sodomy, mayhem, and larceny.” 1 Wharton 1857, § 2, at 112; see

Plucknett, at 442–51. In English common law, felonies consisted of the

crimes that would be punished by “a total forfeiture of either lands or

goods, or both, . . . and to which capital or other punishment may be

superadded, according to the degree of guilt.” 4 Blackstone, at *95. “In

this country, with a few exceptions, the common law classification has

obtained; the principal felonies being received as they originally existed,

and their number being increased as the exigencies of society prompted.”

1 Wharton 1857, § 2, at 112.

“Just what the scope of the term crimen falsi was seems never to

have been accurately defined . . . .” Ralph R. Wood, Note, Infamy as a

Testimonial Disqualification, 2 Tex. L. Rev. 227, 228 (1924). 4 In the late

seventeenth century, the concept of crimen falsi began to be used to

disqualify witnesses under the theory that the deceit of those convicted

rendered them unable to be trusted to testify truthfully. Stuart P. Green,

Deceit and the Classification of Crimes: Federal Rule of Evidence 609(A)(2)

and the Origins of Crimen Falsi, 90 J. Crim. L. & Criminology 1087, 1106

(2000). 5 In 1857, Wharton defined the disqualifying crimen falsi as those

that both “involve[] the charge of falsehood” and “may injuriously affect the administration of justice, by the introduction of falsehood and fraud.”

2 Wharton 1857 § 759, at 416. He proceeded to identify “forgery,

perjury, subornation of perjury, suppression of testimony by bribery,

conspiracy to procure the absence of a witness, or conspiracy to accuse

4Wood noted that practically the scope of crimes included in crimen falsi had been construed as crimes of a felony grade. Wood, 2 Tex. L. Rev. at 228. 5Before the seventeenth century, the crimen falsi were primarily forgery and counterfeiting, both of which fell within the treason category and were punished as such, not singled out for punishment based on their deceitful nature. Green, 90 J. Crim. L. & Criminology at 1104–05. 13

another of crime, and barratry” as the qualifying offenses. Id. (footnotes

omitted). 6

Infamy in the first half of the nineteenth century was understood

in two contexts: infamy of the crime and infamy of the punishment. The

infamy of the crime was considered to destroy the competency of the

person convicted. Francis Wharton, A Treatise on the Criminal Law of the

United States 202 (Phila., James Kay, Jun. & Bro. 1846) [hereinafter

Wharton 1846]. It is this type of infamy that led to voter, witness, and

juror disqualifications. Holloway, at 3–4 (“Infamous individuals

experienced civil ‘degradation’—meaning the loss of the rights of

citizenship.”).

During the early nineteenth century, many states added provisions

to their constitutions excluding persons convicted of infamous crimes

from the right of suffrage. Ohio passed the first infamous-crime

exclusion provision in 1803, giving the legislature “full power to exclude

from the privilege of electing, or being elected, any person convicted of

bribery, perjury, or any other infamous crime.” Ohio Const. of 1803,

art. IV, § 4. Nine other states had added similar restrictions by the time

voters approved the Iowa Constitution of 1846. Ark. Const. of 1836,

art. IV, § 12; Fla. Const. of 1838, art. VI, § 4; Ill. Const. of 1818, art. II,

§ 30; Ind. Const. of 1816, art. VI, § 4; Mo. Const. of 1820, art. III, § 14;

N.Y. Const. of 1821, art. II, § 2; R.I. Const. of 1843, art. II, § 4; Tenn.

Const. of 1835, art. IV, § 2; Va. Const. of 1830, art. III, § 14. 7

6In the 1846 edition of his treatise, Wharton only specified “perjury, forgery, . . .

conspiracy, barratry, and the like” as crimen falsi. Francis Wharton, A Treatise on the Criminal Law of the United States 201–02 (Phila., James Kay, Jun. & Bro. 1846). 7Otherstates excluded voters based on other variants of criminal conviction. For example, Connecticut tied electoral privilege forfeiture to conviction of an offense for which an infamous punishment is inflicted rather than an infamous crime. Conn. 14

“Persons convicted of treason, felony, piracy, præmunire, perjury,

forgery, or any other species of the crimen falsi, such as conspiracy,

barratry, and the like, [we]re inadmissible” as witnesses. Wharton 1846,

at 201–02 (footnotes omitted). Despite this particularized listing, just

eleven years later in a subsequent edition of the same treatise, Wharton

noted, “[I]t is a difficult point to determine precisely the offences which

render the perpetrator of them infamous; the usual and more general

enumeration of them being treason, felony, and the crimen falsi.”

2 Wharton 1857 § 758, at 416. Wharton’s definitions are particularly

persuasive of the conception of infamous crime at the time of our

constitution because the two editions cited here were published the same

years as Iowa voters ratified the two versions of the Iowa Constitution.

Overall, the common law reveals that as the concept of democratic

governing began to emerge, the concept of infamy took firm hold as a

standard utilized to disqualify people from engaging in various civic

functions, including voting. Overall, it is fair to conclude the concept of

infamous crimes was commonly associated with felony crimes.

B. Iowa History. We next review the history of the concept of

infamy in Iowa. We begin with our constitution and then separately

consider its history in each branch of government.

1. Constitutional history. The common law concept of disqualifying

a person from voting based on the conviction of an infamous crime

_________________________ Const. of 1818, art. VI, § 3. New Jersey excluded those convicted of crimes that result in the loss of the ability to act as a witness, essentially an infamous-crime provision. N.J. Const. of 1844, art. II, § 1. The term “high crimes and misdemeanors” also appeared in disqualification provisions. See, e.g., Ala. Const. of 1819, art. VI, § 5; Ky. Const. of 1799, art. VI, § 4; La. Const. of 1812, art. VI, § 4. 15

emerged in Iowa as a part of our first constitution in 1846. 8 The

provision was then included in our revised constitution in 1857. As

originally enacted, article II, section 5 provided “no idiot, or insane

person, or person convicted of any infamous crime, shall be entitled to

the privilege of an elector.” Iowa Const. art. II, § 5 (repealed 2008). This

language remained intact for the next 151 years. In 2008, the section

was amended to “remove[] the words ‘idiot’ and ‘insane’ from the

constitutional provision and substitute[] the phrase ‘mentally

incompetent to vote.’ ” See Legislative Servs. Agency, 2007 Summary of

Legislation, H.J.R. 3—Proposed Constitutional Amendment—

Qualification of Electors (Iowa 2007), https://www.legis.iowa.gov/docs/

publications/SOL/401775.pdf. Thus, today, article II, section 5 provides

that “a person adjudicated mentally incompetent to vote or a person

convicted of any infamous crime shall not be entitled to the privilege of

an elector.” Iowa Const. art. II, § 5 (ratified 2008).

2. Legislative history. Our early territorial laws specifically

identified crimes deemed to be infamous. See The Statute Laws of the

Territory of Iowa, Code of Criminal Jurisprudence, § 109, at 182 (1839)

[hereinafter 1839 Statute Laws]. This classification was primarily found

in a statute that included crimes such as rape, kidnapping, perjury,

arson, burglary, robbery, sodomy, the crime against nature, larceny,

forgery, counterfeiting, and bigamy, but did not mention other statutory

crimes such as manslaughter, mayhem, assault, false imprisonment,

bribery, and fraudulent misrepresentation. Compare id., with id. Code of

8A different version of the clause was originally proposed, disqualifying “persons declared infamous by act of the legislature.” Iowa Const. of 1844, art. III, § 5. This provision would be functional as long as the legislature deemed people infamous based on criminal convictions, as done in the 1839 territorial statute. See The Statute Laws of the Territory of Iowa, Code of Criminal Jurisprudence, § 109, at 182 (1839). 16

Criminal Procedure § 92, at 126 (defining felony), and id. Code of

Criminal Jurisprudence §§ 1–96, at 150–70 (describing various crimes

and punishments). Crimes punishable by death—such as murder—were

also not included, presumably because the sentence eliminated the need

to impose any disqualifications.

While this early legislative history reveals the concept of infamy

was swiftly introduced into the culture of Iowa with clarity, the law was

short-lived. The infamous-crime statute retreated into legislative

obscurity almost as quickly as it surfaced. The territorial legislature

repealed the statute in 1843 and did not redefine infamy in a new

statute. See Revised Statutes of the Territory of Iowa ch. 49, class 2,

§ 48, at 137 (1843). 9 The concept then essentially lay dormant in the

legislative branch of government for over a century and a half, despite its

continued prominent presence as a constitutional restriction on voting.

During these nearly eight generations of Iowa life, the public attitudes

about crime shifted and many new crimes were identified and introduced

into our criminal code. See, e.g., Iowa Code § 124.401 (2013) (controlled

substances); id. § 321J.2 (operating while intoxicated); id. ch. 708A

(terrorism); id. § 710A.2 (human trafficking); id. § 715A.8 (identity theft). Compare Iowa Code §§ 914–919, 1019–1027 (1919) (prohibiting sale,

9Instead, the legislature divided crimes into two classes. One class essentially included crimes punishable by incarceration in the penitentiary, and the other class included crimes punishable by fine or incarceration in the county jail. Revised Statutes of the Territory of Iowa ch. 49, §§ 1–75, at 119–30; id. ch. 49, class 2, §§ 1–39, at 131– 36. It then declared persons convicted of crimes punishable by imprisonment in the penitentiary “to be deemed incompetent to be an elector, juror, or witness” or hold public office. Id. ch. 49, § 79, at 131. This approach, however, was effectively preempted by the adoption of the constitution in 1846. Further, in 1849, the legislature adopted an elector-qualifications statute specifying an infamous-crimes conviction disqualified an elector. 1849 Iowa Acts ch. 105, § 1. Yet no elector- qualifications provision was incorporated into the 1851 Iowa Code. See Iowa Code §§ 244–261, at 33–35 (1851). 17

manufacture, possession, transportation, and advertising of liquor, beer,

and wine and increasing associated penalties), with Iowa Code §§ 1921-

f18 to -f37 (1935) (establishing state-run liquor stores and permit

systems). Yet through all the years and shifts in our criminal law, the

concept of infamy and its disqualification of voters largely remained

dormant.

Then, in 1993, Congress passed the National Voter Registration

Act of 1993. 52 U.S.C. §§ 20501–20511 (2012). The purpose of the Act

was to establish procedures to increase the number of registered voters,

enhance voter participation in elections, “protect the integrity of the

electoral process,” and to ensure current and accurate voter registration

lists. Id. § 20501. Among the provisions to expand voter registration,

the Act established requirements for state voter registration rolls. Id.

§ 20507. Among those requirements was a provision that allowed states

to remove the name of a registrant from the list of eligible voters “as

provided by State law, by reason of criminal conviction or mental

incapacity.” Id. § 20507(a)(3)(B). This law awoke our legislature to take

action to define those criminal convictions that would make a person

ineligible to vote.

During the next session of the General Assembly, the Iowa

legislature passed an act to implement the National Voter Registration

Act. 1994 Iowa Acts ch. 1169 (codified in scattered sections of Iowa Code

(1995)). This implementation act disqualified persons convicted of a

felony as defined under Iowa Code section 701.7 or a federal felony. Id.

§ 7 (codified at Iowa Code § 48A.6). It also provided for the removal of

voters from the registration list by requiring the court to send notice of 18

convictions to the state registrar of voters. Id. § 31 (codified at Iowa Code

§ 48A.30(1)(d)). 10

The legislature passed a second election law act around the same

time with more election and registration laws as well as corrective and

technical changes to Iowa’s election laws. 1994 Iowa Acts ch. 1180

(codified in scattered sections of Iowa Code). The first provision of this

act defined an infamous crime as a felony under section 701.7 or a

federal felony, thereby bringing section 48A.6 disqualifications in

compliance with the language of article II, section 5 of the Iowa

Constitution. Id. § 1 (now codified at Iowa Code § 39.3(8) (2013)). The

statute meant that convicted felons in Iowa were disqualified from voting.

This law enacted by our legislature remains our law today.

3. Judicial history. Our court has not had many opportunities to

shape the meaning of infamy over the years in the context of voter

disqualification. We first discussed the concept of infamous crimes in

1848, two years after we became a state. See Carter v. Cavenaugh, 1

Greene 171, 176 (Iowa 1848). However, we did so only in the course of

deciding the proper method to impeach a witness who testified at trial.

See id. at 176–77. In Carter, we limited impeachment testimony of a

witness to general reputation, not specific crimes. Id. at 179. In doing

so, we observed the history of disqualifying a witness from testifying. Id.

at 176–77. We recognized infamous crimes that render a witness

incompetent to testify were “the heinous crimes classed as treason,

felony, and the crimen falsi as understood at common law.” Id. at 176.

We also observed infamous crimes were crimes of moral depravity that

10A similar provision had previously been in place, canceling the registration of a qualified elector when the clerk of court sent notice of conviction of a felony. Iowa Code § 48.31(4) (1993). 19

rendered the person incompetent to participate in many aspects of

government until pardoned. Id.

Over fifty years passed before we again addressed the concept of

infamy, but it was once more in the context of the testimony of a witness

at trial. In 1901, we noted,

[T]here has been great difficulty among judges and text writers in stating any satisfactory rule for determining definitely what are the crimes conviction of which disqualifies a witness from testifying. Without controversy, conviction for treason or felony will disqualify, but as to other crimes it has been said that they must be in their nature infamous; and this has been interpreted to include only those crimes involving the element of falsifying, such as perjury or forgery, or other crimes which tend to the perversion of justice in the courts.

Palmer v. Cedar Rapids & Marion Ry., 113 Iowa 442, 446, 85 N.W. 756,

757 (1901).

We next considered the concept of infamy in 1916. In Flannagan

v. Jepson, 177 Iowa 393, 399–401, 158 N.W. 641, 643–44 (1916), we

examined Ex parte Wilson, 114 U.S. 417, 429, 5 S. Ct. 935, 941, 29

L. Ed. 89, 93 (1885) (determining that for purposes of the Fifth

Amendment, a crime punishable by an infamous punishment like hard labor in a penitentiary is an infamous crime 11), to determine whether an infamous punishment could be imposed for contempt and ultimately

decided that imposition of an infamous punishment requires conviction

of a charge triable by jury. However, we inadvertently removed the

limiting clause “within the meaning of the [F]ifth [A]mendment” from the

11The Wilson Court expressly distinguished between “crimes subject to any infamous punishment” and “crimes infamous in their nature, independently of the punishment affixed to them,” though it allowed that the crimes subject to capital or infamous punishment could also include crimes infamous in nature. Wilson, 114 U.S. at 422-24, 5 S. Ct. at 937–38, 29 L. Ed. at 91. 20

Wilson definition of infamous crime and followed the Supreme Court’s

pronouncement that infamous crime referred to crimes punishable by

imprisonment in a penitentiary. Compare Flannagan, 177 Iowa at 400,

158 N.W. at 643, with Wilson, 114 U.S. at 429, 5 S. Ct. at 941, 29 L. Ed.

at 93. This move significantly impacted our development of the concept

as applied to voter disqualification in the next infamous-crime case we

decided.

In the same year we decided Flannagan, we were also presented

with a case for the first time that addressed the concept of infamous

crimes in the context of qualified electors. In Blodgett v. Clarke, 177

Iowa 575, 578, 159 N.W. 243, 244 (1916) (per curiam), overruled by

Chiodo, 846 N.W.2d at 852, we were required to decide if forgery was an

infamous crime that would disqualify an elector from running for public

office. We found ourselves squarely confronted with the meaning of

infamous crime under article II, section 5 of our constitution and its

application to disqualify an elector. Id. In considering the question on

the heels of Flannagan, we wasted no time in holding that an infamous

crime was any crime punishable by imprisonment in the penitentiary.

Id. Our pronouncement closely aligned with the approach taken in

Wilson. See id.; Flannagan, 177 Iowa at 400, 158 N.W. at 643. We

engaged in no independent analysis and effectively made felonies and

infamous crimes synonymous under Iowa law. See Iowa Code § 5093

(1897) (defining felony as “a public offense . . . punish[able] by

imprisonment in the penitentiary”).

We returned to consider the concept of infamy in the context of

witness disqualification in State v. Voelpel, 208 Iowa 1049, 1050, 226

N.W. 770, 771 (1929). In that case, we distinguished between infamous

crimes, crimes of moral turpitude, and felonies: 21 We are not confronted with the question of whether the previous conviction of a witness must be of “an infamous crime,” or one “involving moral turpitude.” By statute the proof may be only of “previous conviction for a felony.” This is one of the methods of impeachment of a witness. It may be true that in ancient times, and under the common law, a witness who had been previously convicted of an “infamous crime” was not permitted to testify at all. However, the law is now more logical and rational in this regard.

Id. at 1051, 226 N.W. at 771. Although this language strongly implied a

distinction between infamous crime and felony, the nature of that

distinction remained unsaid, with the distinction between a witness’s

disqualification from testifying and the impeachment of the witness

instead taking center stage. 12 See id.

In 1957, we addressed the concept of infamy in State ex rel. Dean

v. Haubrich, 248 Iowa 978, 980, 83 N.W.2d 451, 452 (1957). Yet we did

not forge any new ground from the path taken in Blodgett. See id.

Rather, we focused on whether a person convicted of an infamous crime

could become eligible for elected office by the governor restoring state

citizenship rights. Id. at 985–86, 83 N.W.2d at 455. As in Blodgett, we

engaged in no independent analysis of the meaning of infamous crime.

Then, just two years ago, we were required to consider the concept

of infamous crimes in the same context we did in Blodgett almost a

12In some cases, we have specifically noted crimes as infamous in nature. See State v. Pilcher, 242 N.W.2d 367, 368–69 (Iowa 1976) (sodomy); State v. Gruver, 260 Iowa 131, 134, 148 N.W.2d 405, 407 (1967) (forgery); Kotek v. Bennett, 255 Iowa 984, 988, 124 N.W.2d 710, 712 (1963) (first-degree murder, under a Fifth Amendment challenge); State ex rel. Dean v. Haubrich, 248 Iowa 978, 979–80, 83 N.W.2d 451, 452 (1957) (federal tax evasion); Blodgett, 177 Iowa at 578, 159 N.W. at 244 (forgery); State v. Kingsley, 39 Iowa 439, 441 (1874) (seduction). However, in each of these cases, the crime was simply noted as an infamous crime, not evaluated to determine whether or why it should be considered infamous. Finally, in State v. Cullison, 173 N.W.2d 533, 537 (Iowa 1970), we noted the felon had constitutionally lost his right to vote and hold public office as a result of his felony conviction but did not include which felony he was convicted of that resulted in the loss of the right. 22

century earlier. Chiodo, 846 N.W.2d at 848. In Chiodo, as in Blodgett,

we were asked to determine if a criminal conviction disqualified a person

under the voting provision of our constitution from running for public

office. Id. at 848–49. However, unlike the felony level crime of forgery in

Blodgett, the crime involved in Chiodo was the aggravated misdemeanor

of operating while intoxicated, second offense. Id. at 849; Blodgett, 177

Iowa at 578, 159 N.W. at 244.

For the first time, we engaged in a comprehensive review of our law

on infamous crime. See Chiodo, 846 N.W.2d at 848–56. In doing so, we

discovered that our prior cases never engaged in a textual analysis of the

meaning of infamous crime in article II, section 5 of our constitution.

See id. at 849–51. The plurality opinion rejected the Blodgett standard

that broadly defined infamous crimes as any crime punishable by

imprisonment in the state penitentiary. Id. at 852. It also rejected the

notion of infamy as a criminal punishment and concluded that our

founders viewed the concept more as a regulatory measure intended to

“preserve the integrity of the process of voting” and to protect the process

from those “infected by an infamous disposition.” Id. at 855. Although

we identified various tests used in other states to determine if a crime

was infamous—affront to democratic governance, the common law

definition, or crimes of great moral turpitude—we declined to adopt any

of them at that time. Id. at 856. Instead, we only utilized two criteria:

the crime “must be classified as particularly serious” and “must . . .

reveal[] that voters who commit the crime would tend to undermine the

process of democratic governance through elections.” Id. We held that

to meet the first criterion, a particularly serious nature, the crime must

be a felony, not a misdemeanor. Id. at 856–57. 23

4. Executive history. With the absence of a statute governing the

disqualification of voters for convictions of infamous crimes in almost all

but the last two decades of our statehood, little history of executive

branch enforcement of the constitutional provision governing voter

disqualification exists in Iowa. Yet cases like Blodgett and Haubrich

would not have made it to our court if the executive branch had not been

implementing the disqualification of otherwise eligible electors convicted

of committing infamous crimes. Moreover, Haubrich provides evidence

that governors over the years have used the pardoning power to restore

elective rights to convicted persons. See 248 Iowa at 985–86, 83 N.W.2d

at 455–56. Overall, the restoration of voting rights of convicted felons

who have completed their sentences provides the most significant history

of executive branch action, particularly in recent times.

The last decade has revealed two different approaches by the

executive branch to the restoration of voting rights through the exercise

of the power to pardon. On July 4, 2005, Governor Thomas J. Vilsack

signed Executive Order No. 42. Exec. Order No. 42 (2005),

http://publications.iowa.gov/3762/1/EO_42.pdf. This order restored

the citizenship rights—including voting rights and eligibility for public

office—for “all offenders that are completely discharged from criminal

sentence, including any accompanying term of probation, parole, or

supervised release.” Id. It further provided that eligible offenders would

automatically be reviewed to determine whether to restore their rights

when their sentences were discharged. Id. The order was rescinded on

January 14, 2011, by Governor Terry E. Branstad. Exec. Order No. 70

(2011), http://publications.iowa.gov/10194/1/BranstadEO70.pdf. Cur-

rently, offenders who have discharged their sentences are required to go

through an application process before their voting rights may be 24

restored. Id. Each application is then considered on a case-by-case

basis by the governor’s office.

In addition to an executive branch history of restoring voting rights

through the exercise of the power to pardon, the history of the executive

branch also includes opinions from the office of the Iowa Attorney

General discussing infamous crimes, disqualification, and the restoration

of rights. An early opinion concluded that the restoration of rights was

incident to the governor’s constitutional power to pardon and that a

restoration could not happen without the right to pardon. Op. Iowa Att’y

Gen. (Nov. 17, 1898), 1898 WL 37740, at *1. In 1912, an advisory

opinion written to then-Governor B.F. Carroll noted that the

disqualification provision was not limited to state convictions and that an

infamous crime in state or federal court fell within the scope of article II,

section 5 of the Iowa Constitution. Op. Iowa Att’y Gen. (Oct. 16, 1912),

1912 WL 49029, at *1 (opining the governor had the right to restore state

citizenship rights regardless of jurisdiction of conviction). A 1924

opinion stated that a convict (other than one guilty of treason or in a

case of impeachment) that had discharged his sentence and received a

certificate of restoration “is restored to the same position in which he was before his conviction and is therefore, restored to the privileges of an

elector.” Op. Iowa Att’y Gen. (Mar. 8, 1924), 1924 WL 60500, at *2. In

1936, the attorney general’s office expressly linked the restoration to a

pardon and noted that the rights of citizenship cannot be enjoyed

following a conviction “until and unless” a restoration is granted. Op.

Iowa Att’y Gen. (Apr. 13, 1936), 1936 WL 68639, at *2.

In 1957, the attorney general concluded the governor was “the sole

judge as to what conditions must be met before such restoration may be

procured” and that the power to restore rights rested exclusively in the 25

Office of the Governor. Op. Iowa Att’y Gen. (May 20, 1957), 1957 WL

93124, at *1. In 1964, the attorney general informed the governor that

his power to restore Iowa citizenship rights extended to those convicted

in other states, unless they had already been pardoned in that other

state. Op. Iowa Att’y Gen. (June 9, 1964), 1964 WL 121187, at *2.

The legislature consulted with the attorney general in 1976 when

amending the election-related criminal penalties. See Op. Iowa Att’y

Gen. No. 76-3-7 (Mar. 11, 1976), 1976 WL 375888, at *1. First, the

attorney general found that under the then-current Iowa court

precedent, aggravated and serious misdemeanors would fall within the

category of infamous crimes based on the penitentiary punishment

proposed. Id. at *2. Second, the attorney general concluded that a

statutory provision restoring elective rights following discharge would

both violate the elector requirements of article II, section 5 of the Iowa

Constitution and infringe on the pardoning powers of the executive

branch. Id. at *3–4. This was the approach followed by the dissenting

opinion in Chiodo. See 846 N.W.2d at 863–65 (Wiggins, J., dissenting).

The final useful guidance from the attorney general’s office was

directed to the Iowa Voter Registration Commission in 1985 regarding

the application of statutes implementing article II, section 5 of the Iowa

Constitution. Op. Iowa Att’y Gen. No. 85-6-7(L) (June 19, 1985), 1985

WL 549204, at *1. The opinion observed that the courts had not fully

considered the term “infamous crime” since 1916 in Flannagan. Id. at

*3. It found the year-or-more-confinement formulation of the term stated

in Flannagan and Haubrich to be problematic, questioning whether that

formulation would withstand judicial review, but concluded that the

executive branch was bound to it. Id. at *3–4. 26

As a whole, the history of the executive branch of government

provides more insight into the debate over the restoration of voting rights

than the debate over what crimes should result in the loss of voting

rights. However, the debate over the restoration of rights after

completing the sentence is separate and distinct from the debate over the

types of crime that should be considered infamous and does not

influence the meaning of infamy.

C. Application of Infamy in Contexts Other Than Voting. This

historical background serves not as the end, but as the beginning point

in our analysis. One author explains that those convicted of infamous

crimes have breached the civic trust and that regaining the right to vote

serves as the relevant currency signaling the breaching party once again

meets the standards of society and has been restored to that civic trust.

Mary Sigler, Defensible Disenfranchisement, 99 Iowa L. Rev. 1725, 1728,

1736–38 (2014). This concept relates to social-contract theories that

suffrage protects citizens from misrule and requires them to not harm

each other. See id. at 1736–38 (examining the topic of “civic trust” and

its application to the electoral process); see also Alec C. Ewald, “Civil

Death”: The Ideological Paradox of Criminal Disenfranchisement Law in

the United States, 2002 Wis. L. Rev. 1045, 1073–78 (examining the

relation of principles from John Locke, Thomas Paine, and Alexis

de Tocqueville to American attitudes toward criminals). Under this

theory, those who harm others or society through criminal action would

exercise the right to vote in a way to harm society. Although society

believes in the rehabilitation of offenders and attitudes toward those who

have discharged their sentences have evolved considerably, we must

determine societal attitudes toward those still under sentence as well as

those with completed sentences. Attitudes might be changing to 27

recognize that those convicted of infamous crimes can be trustworthy

and valuable electors, but the premise of at least some disqualification

based on conviction still appears to have general acceptance throughout

the country. 13

As mentioned above, under English common law, those convicted

of infamous crimes were barred from testifying because they were

considered incompetent. 3 Blackstone, at *370 (“Infamous persons are

such as may be challenged as jurors, propter delictum (on account of

incompetency) and therefore never shall be admitted to give evidence to

inform that jury, with whom they were too scandalous to associate.”).

The nature of the crime, not the potential for infliction of an infamous

punishment, provided the ground for incompetency. 2 William Oldnall

Russell, A Treatise on Crimes and Indictable Misdemeanors 593 (Theron

Metcalf ed., 2d Am. ed., Phila., P.H. Nicklin & T. Johnson 1831). This

practice of disqualifying those convicted of infamous crimes from

testifying in court was already changing by the time our constitution was

ratified. See George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J.

575, 656–71 (1997) (tracing the fall of competency rules governing felon

testimony in civil and criminal cases).

As early as 1848, our court expressed doubt of the link between

truthfulness and character as applied to witness testimony. See Carter,

1 Greene at 176–77. By 1851, our statutes allowed “[f]acts which have

heretofore caused the exclusion of testimony” to be admitted to lessen

credibility, but the testimony of those convicted of felonies was

13Only two states, Maine and Vermont, do not impose any voting restrictions or disenfranchise voters for criminal conviction. See Criminal Disenfranchisement Laws Across the United States, Brennan Ctr. for Justice (May 31, 2016), http://www.brennancenter.org/sites/default/files/publications/Criminal_Disenfranchi sement_Map.pdf. 28

permitted. Iowa Code §§ 2389, 2398 (1851). In 1892, the Supreme

Court observed that barriers excluding witnesses had been falling:

[I]t is generally, though perhaps not universally, true that no one is excluded [from testifying] unless the lips of the originally adverse party are closed by death, or unless some one of those peculiarly confidential relations, like that of husband and wife, forbids the breaking of silence.

Benson v. United States, 146 U.S. 325, 337, 13 S. Ct. 60, 64, 36 L. Ed.

991, 996 (1892). This movement continued and was reinforced by the

Court in 1918, “leaving the credit and weight of such testimony to be

determined by the jury or by the court, rather than by rejecting

witnesses as incompetent.” Rosen v. United States, 245 U.S. 467, 471,

38 S. Ct. 148, 150, 62 L. Ed. 406, 409 (1918). The Rosen Court noted

the extension reached those convicted of perjury, even though perjury

reflected “a greater disregard for the truth than it was thought should be

implied from a conviction of other crime.” Id.

Today the federal and state rules of evidence allow impeachment of

a witness for conviction of a crime punishable by death or imprisonment

of a year or more or for conviction of a crime involving dishonesty or false

statement; the rules do not disqualify witnesses from testimony based on

any crimes. Fed. R. Evid. 609(a); Iowa R. Evid. 5.609(a). While the

admissibility of most convictions for impeachment purposes is subject to

a rule 5.403 balancing of the probative nature of the conviction versus its

prejudicial value, crimes involving dishonesty and false statement—i.e.

the crimen falsi—are not subject to discretionary exclusion. State v.

Harrington, 800 N.W.2d 46, 49–51 (Iowa 2011). However, the rule places

a time limit on either form of impeachment: ten years from the later of

the date of conviction or the date of release from confinement. Fed. R.

Evid. 609(b); Iowa R. Evid. 5.609(b). 29

Conviction of an infamous crime disqualified a person from serving

as a juror for considerably longer than the testimonial disqualification.

In 1851, only qualified electors “of good moral character [and] sound

judgment” could be competent jurors. Iowa Code § 1630. As article II,

section 5 of the Iowa Constitution expressly excepted those convicted of

infamous crimes from being an elector, the statute had the effect of

disqualifying every person convicted of an infamous crime from jury

service. This “qualified elector” requirement remained the law in Iowa

until 1984. 1984 Iowa Acts ch. 1181, § 2 (repealing Iowa Code § 607.1

(1983) (juror qualifications)). The replacement qualifications no longer

required status as a qualified elector and did not otherwise disqualify a

person from jury service based on a conviction. See id. § 3 (codified at

Iowa Code § 607.2 (1985)). Jury lists were no longer a selection of

eligible electors derived from lists of registered voters or drivers’ license

holders, but instead became a selection of those qualified for service

taken from a combined list of voters, drivers’ license holders, and public

utility customers. Compare Iowa Code § 609.5 (1983), with Iowa Code

§ 609.5 (1985).

The court ceased invalidating verdicts from juries that included a

disqualified juror much earlier in time than the jury service

disqualification ended. In 1860, we held that a defendant waives any

objection to a juror’s bias or prejudice when the jury is accepted at the

beginning of trial, but objections to any disqualified persons sitting as

jurors are not waived and provide the defendant a right to a new trial.

State v. Groome, 10 Iowa 308, 316 (1860) (“We think it is the duty of the

State to place twelve legal jurors in the box, and that it is not the duty of

defendant to inquire whether the jurors are qualified or not.”), overruled 30

in part by State v. Pickett, 103 Iowa 714, 720, 73 N.W. 346, 347 (1897).

This idea was expressly overruled in 1897, when we held,

There is no reason why every party to an action, civil or criminal, should not be held to exercise the right given him to examine as to the qualifications of jurors called to act in his case, and, if he waives that right, to be concluded thereby, unless actual prejudice is otherwise shown.

Pickett, 103 Iowa at 720, 73 N.W. at 347. Thus, both parties would bear

the burden of ensuring the jurors were competent to sit on the jury, and

a juror incompetent due to a conviction would no longer invalidate a

verdict without the defendant showing that juror’s presence had

prejudiced the verdict. Id. Unlike with testimony impeachment,

however, some states continue to disqualify jurors based on conviction of

infamous crime. See, e.g., Miss. Code Ann. § 13–5–1 (West, Westlaw

through 2016 Reg. Sess. effective through May 17, 2016) (“Every citizen

. . . who . . . has not been convicted of an infamous crime . . . is a

competent juror.”).

Overall, we left the concept of infamy behind in the context of

disqualifying a witness from testifying. 14 More recently, we ceased to use it to disqualify jurors. Yet these divergent paths did not change the

14Significantly, the 1846 Constitution had provided only that “no person shall be . . . rendered incompetent to give evidence in any court of law or equity, in consequence of his opinions on the subject of religion.” Iowa Const. of 1846, art. II, § 3. In 1857, the following language was added: “[A]nd any party to any judicial proceeding shall have the right to use as a witness, or take the testimony of, any other person not disqualified on account of interest, who may be cognizant of any fact material to the case . . . .” Iowa Const. art. I, § 4. Thus, “interest” seemingly became the only basis for disqualifying a witness. In fact, the delegates to the 1857 convention voted down an amendment that would have authorized “persons convicted of infamous crimes” to be prevented from testifying. 1 The Debates of the Constitutional Convention of the State of Iowa 180 (W. Blair Lord rep., 1857), www.statelibraryofiowa.org/services/collections/law- library/iacon/iadeb/condebs. But at the same time, our framers retained the language disqualifying persons convicted of infamous crimes from voting. 31

definition of infamous crime in the context of voter disqualification, and

they do not undermine our analytical model of relying on community

standards of today to define an infamous crime. Prevailing community

standards remain important in defining infamous crimes, whether those

standards might serve to exclude some felony crimes from the definition

or include all felony crimes. Community standards are properly used to

define constitutional doctrine unless constitutional facts exist that reveal

the standards are contrary to the intent and purpose of the

constitutional doctrine.

VII. Application.

As we strive today to identify a standard of infamy, it is clear our

history reveals the infamous crime disqualification from voting was

introduced to Iowa as a concept aligned with the common law notion of

infamy. This common law approach generally identified infamous crimes

as felonies. See Carter, 1 Greene at 176. Yet the concept of infamy was

not carried forward with a specific or strict definition, but rather as a

general principle dependent on time for its development. This is what

history has shown has been taking place from the time the concept of

infamy originated. The difficulty today is that the three branches of

government, and therefore the State of Iowa, have done little to advance

the concept.

Our territorial legislature briefly expressed—and quickly

withdrew—the view that infamous crimes included many, but not all,

crimes that today would be described as felonies. See 1839 Statute Laws

§ 109, at 182; Revised Statutes of the Territory of Iowa ch. 49, class 2,

§ 48, at 137. Then, in 1994, our legislature took the concrete step to

expound a bright-line standard that infamous crime embraces all 32

felonies. 1994 Iowa Acts ch. 1180, § 1 (now codified at Iowa Code

§ 39.3(8) (2013)).

Under our analytical model, these legislative pronouncements are

important considerations for us today. Statutes do not serve as

constitutional definitions but provide us the most reliable indicator of

community standards to gauge the evolving views of society important to

our analysis. State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009); see

Chiodo, 846 N.W.2d at 853–54 (plurality opinion). These views are

particularly invaluable in interpreting the infamous-crime clause in Iowa.

See Chiodo, 846 N.W.2d at 854.

The judgment expressed by the legislature in 1994 has additional

importance in this case in light of the absence of other legislative or

judicial expressions in our state’s history. For sure, the legislative view

of infamy has indirectly modified over time as various statutes on crime

expanded and contracted, but only slightly. For example, sodomy was

declared by our territorial legislature to be among the infamous crimes in

1839, and it remained a crime well into the twentieth century. Iowa

Code ch. 705 (1977); 1839 Statute Laws § 109, at 182. Today, it is no

longer a crime—the criminal provision was repealed in 1978. See 1976

Iowa Acts ch. 1245, ch. 4, §§ 526, 529. Bigamy was also declared an

infamous crime in 1839. 1839 Statute Laws § 83, at 173–74; id. § 109,

at 182. It was punishable by imprisonment in the penitentiary, and this

harsh punishment continued well into the twentieth century. Id. § 83, at

174; Iowa Code § 703.1 (1977). Today, it is only considered a serious

misdemeanor. Iowa Code § 726.2 (2013). Thus, the scope of infamy

associated with criminal acts has evolved as our view of criminal

culpability evolved. Yet these modest changes to our view of crime over

time did not knock the concept of infamy out of line with the concept of 33

felony. To the contrary, infamy remained remarkably consistent with its

historic connection to felonies over the passage of time.

Moreover, the definition is not out of line with the national view of

infamy in the context of voter disqualification. Certainly, no national

consensus has developed to define infamous crime either more broadly

or more narrowly than our legislature. As we recognized in Chiodo, many

states across the nation have included provisions in their constitutions

to deny people the right to vote when convicted of an infamous crime.15

846 N.W.2d at 855. Regarding those states, we observed,

Some courts have settled on a standard that defines an “infamous crime” as an “affront to democratic governance or the public administration of justice such that there is a reasonable probability that a person convicted of such a crime poses a threat to the integrity of elections.” Other courts limit the definition to a “felony, a crimen falsi offense, or a like offense involving the charge of falsehood that affects the public administration of justice.” Still other courts establish the standard at crimes marked by “great moral turpitude.”

Id. at 856 (citations omitted) (first quoting Snyder v. King, 958 N.E.2d

764, 782 (Ind. 2011); then quoting Commonwealth ex rel. Baldwin v.

Richard, 751 A.2d 647, 653 (Pa. 2000); and then quoting Washington v.

State, 75 Ala. 582, 585 (1884)).

Some states define infamous crimes using an itemized list of

crimes, some have adopted versions of the common law definition, some

limit the definition to felonies—either specific offenses or all felonies—

and some define it based on the punishment inflicted. See, e.g., Ark.

Code Ann. § 7-1-101(17) (West, Westlaw through 3d Extraordinary Sess.,

15The other states that still have suffrage infamous-crimes clauses in their constitutions are Indiana, Maryland, New Mexico, New York, Tennessee, and Washington. Ind. Const. art. II, § 8; Md. Const. art. I, § 4; N.M. Const. art. VII, § 1; N.Y. Const. art. II, § 3; Tenn. Const. art. IV, § 2; Wash. Const. art. VI, § 3. 34

90th Ark. Gen. Assemb. in effect May 23, 2016) (felony, misdemeanor

theft or fraudulent/deceitful act, abuse of office, tampering); Miss. Code

Ann. § 1-3-19 (offenses punishable by death or confinement in

penitentiary); Tenn. Code Ann. § 40-20-112 (West, Westlaw through the

2016 2d Reg. Sess. effective through Mar. 24, 2016) (any felony with

infamous adjudication); In re Request of Governor for Advisory Opinion,

950 A.2d 651, 653 (Del. 2008) (“[T]he totality of the circumstances in

each case must be examined before a determination may be made that a

specific felony is infamous.” (quoting State ex rel. Wier v. Peterson, 369

A.2d 1076, 1079 (Del. 1976))); Cure v. State, 26 A.3d 899, 913 (Md. 2011)

(“Infamous crimes include treason, common law felonies, and other

offenses classified generally as crimen falsi.” (quoting State v. Westpoint,

947 A.2d 519, 532 (Md. 2008))).

Additionally, when a state constitutional provision relating to

voting or the holding of public office uses the term “infamous crime,” it

has usually been interpreted to include all felonies. See Washington, 75

Ala. at 585 (“The presumption is, that one rendered infamous by

conviction of felony, or other base offense indicative of great moral

turpitude, is unfit to exercise the privilege of suffrage, or to hold

office . . . .”); State v. Oldner, 206 S.W.3d 818, 821 (Ark. 2005) (holding

“Arkansas courts have consistently recognized that a person convicted of

a felony or one of the specifically enumerated offenses is disqualified

from holding public office” under a provision of the Arkansas

Constitution that applies to persons convicted of “embezzlement of public

money, bribery, forgery, or other infamous crime” (quoting Ark. Const.

art. V, § 9)); People ex rel. Keenan v. McGuane, 150 N.E.2d 168, 176 (Ill.

1958) (“Accordingly, we conclude that any public officer convicted, in the

Federal court or in the court of any sister State, of a felony which falls 35

within the general classification of being inconsistent with commonly

accepted principles of honesty and decency, or which involves moral

turpitude, stands convicted of an infamous crime under the common law

as interpreted when our constitution was adopted in 1870, and that such

conviction creates a vacancy in such office.”); State v. Bixler, 62 Md. 354,

360 (1884) (“The Constitution in providing for exclusion from suffrage of

persons whose character was too bad to be permitted to vote, could only

have intended, by the language used, such crimes as were ‘infamous’ at

common law, and are described as such in common law authorities. . . .

It must be a felony . . . or that which is infamous though it be not a

felony.”); Mauney v. State ex rel. Moore, 707 So. 2d 1093, 1095 (Miss.

1998) (adopting the statutory definition of infamous crime as the

constitutional definition for disqualification from public office and

declaring that “ ‘infamous crime’ includes all felonies”); Barker v. People,

20 Johns. 457, 460 (N.Y. Sup. Ct. 1823) (“The law has settled what

crimes are infamous; they are treason, felony, and every species of the

crimen falsi, such as perjury, conspiracy and barratry.”); Briggs v. Bd. of

Cty. Comm’rs, 217 P.2d 827, 829 (Okla. 1950) (“It is correctly conceded

that a felony under the laws of this State is an infamous crime.”);

Baldwin, 751 A.2d at 653 (“[W]e reaffirm that a crime is infamous . . . if

its underlying facts establish a felony, a crimen falsi offense, or a like

offense involving the charge of falsehood that affects the public

administration of justice.”); State v. Collins, 124 P. 903, 904–05 (Wash.

1912) (finding that when the defendant was convicted of “breaking jail” in

Missouri and then charged with illegally registering to vote in

Washington because he had been previously convicted of an “infamous

crime,” the information “does not state whether he was then charged

with a felony or a misdemeanor under the laws either of that state or of 36

this [and therefore] [i]t is clear that the information thus failed to state

facts which under the present law of this state would necessarily

constitute an infamous crime”); Becker v. Green County, 184 N.W. 715,

717 (Wis. 1921) (“While there has been much debate as to what

constitutes an infamous crime, we think . . . it is now deemed to mean

. . . a crime punishable by imprisonment in the state prison.”); Isaacs v.

Bd. of Ballot Comm’rs, 12 S.E.2d 510, 511 (W. Va. 1940) (“An offense

punishable by death or penitentiary confinement is a felony. And,

generally, felonies are deemed infamous crimes.” (Citation omitted.)).

We readily recognize not all courts have interpreted infamous

crime to include all felonies. In People v. Enlow, the Colorado Supreme

Court interpreted a Colorado statute declaring a county office vacant

upon the incumbent’s conviction of an infamous crime. 310 P.2d 539,

541 (Colo. 1957) (en banc). The court observed that in Colorado, “all

infamous crimes are felonies, but not all felonies are infamous crimes”

and determined that federal tax evasion was not an infamous crime. Id.

at 544–47. However, the court expressly relied on another Colorado

statute that provided a specific list of infamous crimes that did not

include tax evasion. Id. at 545–46. The situation here is different. We

are interpreting a constitutional infamous-crime provision that is

backstopped by a different legislative definition.

In Wier, the Delaware Supreme Court interpreted a provision of the

Delaware Constitution banning persons from holding public office who

had been convicted of “embezzlement of the public money, bribery,

perjury or other infamous crime.” 369 A.2d at 1078 n.3 (quoting Del.

Const. art. 2, § 21). The court said that “not . . . every felony is

necessarily a crime of infamy” and “the totality of the circumstances in

each case must be examined before a determination may be made that a 37

specific felony is infamous.” Id. at 1079. On the facts, the court found

that a convicted rapist had committed an infamous crime. Id.

In Snyder, the Indiana Supreme Court held that “an infamous

crime is one involving an affront to democratic governance or the public

administration of justice such that there is a reasonable probability that

a person convicted of such a crime poses a threat to the integrity of

elections.” 958 N.E.2d at 782. In embracing the “affront to democratic

governance” standard, however, the Indiana Supreme Court relied

heavily on a 1966 California decision, Otsuka v. Hite, 414 P.2d 412, 414

(Cal. 1966) (en banc), abrogated by Ramirez v. Brown, 507 P.2d 1345

(Cal. 1973) (en banc). See Snyder, 958 N.E.2d at 781–82. Otsuka’s

analysis was driven by an interpretation of the Fourteenth Amendment

that has since been overruled by the United States Supreme Court.

Compare Otsuka, 414 P.2d at 422–23, with Richardson v. Ramirez, 418

U.S. 24, 54–55, 94 S. Ct. 2655, 2671, 41 L. Ed. 2d 551, 571 (1974).

In Otsuka, the California Supreme Court limited the scope of

California’s infamous-crimes provision to crimes involving an affront to

democratic governance to avoid what it believed was a conflict with the

Equal Protection Clause of the Fourteenth Amendment. Otsuka, 414

P.2d at 422–23. However, a few years later, the United States Supreme

Court undermined the jurisprudential basis for Otsuka when it held that

felon disenfranchisement is not subject to strict scrutiny because it “has

an affirmative sanction in s[ection] 2 of the Fourteenth Amendment, a

sanction which was not present in the case of the other restrictions on

the franchise which were invalidated in the cases on which respondents

rely.” Richardson, 418 U.S. at 54, 94 S. Ct. at 2671, 41 L. Ed. 2d at 571.

In 2011, the Snyder court discussed Otsuka at length and relied on it,

but without referring to its Fourteenth Amendment underpinnings or 38

what happened to those underpinnings in Richardson. See Snyder, 958

N.E.2d at 781–82.

Notwithstanding, no objective evidence exists that the founders of

our Iowa Constitution adopted or intended to adopt a concept of infamy

restricted to those crimes that undermine the integrity of the election

process or any comparable standard, or that our state evolved to

embrace such a standard at any time in our history. In Chiodo, we

indicated infamous crime as a disqualification from voting was a means

to avoid undermining the integrity of elections. 846 N.W.2d at 855–56.

This observation did not establish a standard, but identified a broad

rationale for the constitutional provision. See id. A standard must still

exist, and a standard based on felonies is not necessarily inconsistent

with the rationale of upholding the integrity of elections. The bottom line

is that throughout history the concept of infamous crime may have

included crimes in addition to felonies, but it always included felonies or

crimes that would be classified as felonies today.

It is also important to observe that in the generation that has

passed since the 1994 statute, there has been no objective public sign or

movement to redefine infamy as the disqualifying standard—until this

case. Even Chiodo came to us as an isolated action by a candidate for

public office to disqualify his opposing candidate because of a prior

conviction for the crime of operating while intoxicated. Id. at 847.

Instead, the public discourse in Iowa since the 1994 legislative

enactment has essentially been limited to the issue of reinstating voting

rights after a felon has discharged his or her sentence, as shown by the 39

actions of our last three governors. No public action has been formally

taken to limit the felonies considered to be infamous crimes. 16

In interpreting our constitution, we must confine our analysis to

the history we have been given and the evidence and facts as they exist.

At times, this required approach has allowed us to expand constitutional

rights beyond what previously existed. See Varnum v. Brien, 763 N.W.2d

862, 883–84 (Iowa 2009) (finding same-sex and opposite-sex couples to

be similarly situated for purposes of marriage laws). But these times

occur when the evidence and understanding of today clearly supports the

result. See id. at 889–96 (examining evidence regarding homosexuality,

marriage, and children).

We observe some evidence from social science professionals and

other experts that identify problems associated with the

disenfranchisement of voters, including convicted felons. See Regina

Austin, “The Shame of It All”: Stigma and the Political Disenfranchisement

of Formerly Convicted and Incarcerated Persons, 36 Colum. Hum. Rts. L.

Rev. 173, 182–84 (2004) (discussing the effect of incarceration on the

voting and political power of ex-offenders, their families, and their

communities); Atiba R. Ellis, Tiered Personhood and the Excluded Voter,

90 Chi.-Kent L. Rev. 463, 476 (2015) (“[D]isenfranchisement concerning

formerly incarcerated felons makes those felons unequal to other citizens

16In 2007, the general assembly adopted new election-related legislation. See 2007 Iowa Acts ch. 59 (codified in scattered sections of Iowa Code (2009)). This legislation provided, among other things, that a voter could be challenged on the ground that he or she “has been convicted of a felony, and the person’s voting rights have not been restored.” Id. § 12 (codified at Iowa Code § 49.79(2)(f)). To the present day, every member of the general assembly must file an affidavit of candidacy as a condition of running for office. The affidavit recites that the candidate knows she or he cannot run for office if she or he has been convicted of a “felony or other infamous crime.” Iowa Code § 43.18(9) (2013). 40

within the political community.”); Brian Pinaire, Milton Heumann &

Laura Bilotta, Barred from the Vote: Public Attitudes Toward the

Disenfranchisement of Felons, 30 Fordham Urb. L.J. 1519, 1540–41

(2003) (discussing survey findings of Americans’ attitudes toward the

voting rights of felons, concluding 81.7% of those surveyed were in favor

of restoration of voting rights, but noting only 9.9% felt felons should

never lose the right to vote). The amici curiae also raised concerns

regarding the permanent nature of disenfranchisement under the

constitution, our statutes, and the current administrative restoration

process. This evidence, however, falls far short of identifying objective

community standards of infamy and does not illuminate the meaning of

infamous crimes today. It also does not carry the weight needed to

undermine the legislative judgment expressed in 1994 to include all

felonies as infamous crimes.

We also observe the presence of a growing movement in our

country and state that emphasizes the purpose of rehabilitation and the

need to reintegrate into society those who have served their sentences

through the restoration of citizenship rights. Yet the restoration of voting

rights is a different issue from the definition of those crimes that result

in disqualification and is not before us.

Finally, we acknowledge that voter disqualification based on

criminal convictions has a disproportionate impact on voting rights of

African Americans and perhaps other groups in society. Yet this

outcome is tied to our criminal justice system as a whole and is not

isolated to the use of the infamous-crime standard. Racial disparity

must be eliminated in society, but its unwanted presence does not

necessarily undermine the concept or current definition of infamous

crime as a standard for voter disqualification. Moreover, no evidence 41

suggests this state adopted or maintained infamy to discriminate against

minority groups.

We also reject Griffin’s claim that her crime of conviction is not

infamous because it was not associated with violence. Infamy has never

required a violent act. Additionally, the history of Griffin’s crime does not

support its exclusion from the concept of infamy. In fact, it has

historically been viewed to be a more serious crime.

The unlicensed, unprescribed sale or other distribution of cocaine

has been illegal in the State of Iowa since 1902. See 1902 Iowa Acts

ch. 110 (codified at Iowa Code §§ 2596-a to -c (1902 Supp.)). In the early

1900s, cocaine was treated the same as other narcotic drugs and could

be prescribed for medical purposes by a physician or dentist. Iowa Code

§ 2596-a. Punishment for violation of the Act—unprescribed or

unlicensed distribution—only resulted in a fine for a first offense, then

up to three months in jail for a subsequent offense. Id. § 2596-b. The

punishment changed in 1924, when the regulation of the sale and

distribution of narcotic drugs was expanded. See Iowa Code §§ 3151–

3155, 3168 (1924). At that point, the possession or sale of any narcotic,

including cocaine, without a prescription or license became a felony and

was punishable by imprisonment in the penitentiary for up to ten years.

Id. §§ 3151–3154, 3168, 12890. Moreover, the delivery of cocaine is

criminal in all fifty states as well as under federal law. 17

17See 21 U.S.C. § 841; Ala. Code § 13A–12–231 (West, Westlaw through Act 2016–376 of 2016 Reg. Sess.); Alaska Stat. Ann. § 11.71.030 (West, Westlaw through 2016 2d Reg. Sess. of 29th Leg.); Ariz. Rev. Stat. Ann. § 13-3408 (West, Westlaw through legis. effective May 17, 2016 of 2d Reg. Sess. of 52d Leg.); Ark. Code Ann. § 5– 64–422; Cal. Health & Safety Code § 11352 (West, Westlaw through urgency legis. through chapter 22 of 2016 Reg. Sess.); Colo. Rev. Stat. Ann. § 18–18–405 (West, Westlaw current through Apr. 22, 2016 of 2d Reg. Sess. of 70th Gen. Assemb.); Conn. Gen. Stat. Ann. § 21a–277 to –278 (West, Westlaw through Pub. Acts effective June 7, 2016); Del. Code Ann. tit. 16, §§ 4752–4754 (West, Westlaw through 80 Laws 2016, 42

Delivery of cocaine is not a new felony, and its classification and

associated punishment have not been found disproportional to the

offense committed. Nor is it an offense that is a felony in some states

_________________________ chapter 243); D.C. Code Ann. § 48–904.01 (West, Westlaw through May 11, 2016); Fla. Stat. Ann. § 893.135(1)(b) (West, Westlaw through chapters from 2016 2d Reg. Sess. of 24th Leg.); Ga. Code Ann. §§ 16–13–30 and –31 (West, Westlaw through 2016 Reg. Sess. of Ga. Gen. Assemb.); Haw. Rev. Stat. Ann. § 712–1241 (West, Westlaw through Act 51 of 2016 Reg. Sess.); Idaho Code Ann. § 37–2732 (West, Westlaw through ch. 47 of 2016 2d Reg. Sess. of 63d Idaho Leg.); 720 Ill. Comp. Stat. Ann. 570/401 (West, Westlaw through P.A. 99–506 of 2016 Reg. Sess.); Ind. Code Ann. § 35-48-4-1 (West, Westlaw through 2016 2d Reg. Sess. of 119th Gen. Assemb.); Kan. Stat. Ann. § 21– 5705 (West, Westlaw through 2016 Reg. Sess.); Ky. Rev. Stat. Ann. § 218A.1412 (West, Westlaw through 2016 Reg. Sess.); La. Stat. Ann. § 40:967 (West, Westlaw through 2016 1st Extraordinary Sess.); Me. Rev. Stat. Ann. tit. 17-A, § 1103 (West, Westlaw through 2015 2d Reg. Sess. of 127th Leg.); Md. Code Ann., Crim. Law § 5–602 (West, Westlaw through 2016 Reg. Sess. of Gen. Assemb.); Mass. Gen. Laws Ann. ch. 94C, § 32A (West, Westlaw through ch. 115 of 2016 2d Ann. Sess.); Mich. Comp. Laws Ann. § 333.7401 (West, Westlaw through P.A.2016, No. 146, of 2016 Reg. Sess., 98th Leg.); Minn. Stat. Ann. §§ 152.021–.023 (West, Westlaw through 2016 Reg. Sess.); Miss. Code Ann. § 41–29–139; Mo. Ann. Stat. § 195.211 (West, Westlaw through 2016 2d Reg. Sess. of 98th Gen. Assemb.); Mont. Ann. Stat. §§ 45–9–101, –102 (West, Westlaw through 2015 Sess.); Neb. Rev. Stat. Ann. § 28–416 (West, Westlaw through 2d Reg. Sess. of 104th Legis.); Nev. Rev. Stat. Ann. § 453.3395 (West, Westlaw through 78th Reg. Sess. and 29th Special Sess.); N.H. Rev. Stat. Ann. § 318-B:26 (West, Westlaw through ch. 160 of 2016 Reg. Sess.); N.J. Stat. Ann. § 2C:35–5 (West, Westlaw through L. 2016, c. 4); N.M. Stat. Ann. § 31–31–20, (West, Westlaw through 2d Reg. Sess. of 52d Leg. (2016) in effect by May 18, 2016); N.Y. Penal Law §§ 220.06, .16 (McKinney, Westlaw through L. 2016, chs. 1 to 64); N.C. Gen. Stat. Ann. § 90–95 (West, Westlaw through 2016–4 of 2016 Extra and Reg. Sess. of Gen. Assemb.); N.D. Cent. Code Ann. § 19–03.1–23 (West, Westlaw through 2015 Reg. Sess. of 64th Leg.); Ohio Rev. Code Ann. § 2925.03 (West, Westlaw through Files 1 to 77 of the 131st Gen. Assemb. (2015– 2016)); Okla. Stat. Ann. tit. 63, § 2–401 (West, Westlaw through ch. 387 of 2d Reg. Sess. of 55th Leg. (2016)); Or. Rev. Stat. Ann. § 475.880 (West, Westlaw through legis. effective June 2, 2016 of 2016 Reg. Sess.); 35 Pa. Stat. and Const. Stat. Ann. § 780–113 (West, Westlaw through 2016 Reg. Sess. Act 35); R.I. Gen. Laws Ann. § 21–28–4.01 (West, Westlaw through ch. 32 of Jan. 2016 Sess.); S.C. Code Ann. § 44–53–370 (West, Westlaw through 2016 Act No. 167); S.D. Codified Laws § 22–42–2 (West, Westlaw through Sess. Laws effective June 30, 2016); Tenn. Code Ann. § 39–17–417; Tex. Health & Safety Code Ann. § 481.102 (West, Westlaw through 2015 Reg. Sess. of 84th Legis. Reg. Sess.); Utah Code Ann. § 58–37–8 (West, Westlaw through 2015 1st Spec. Sess.); Vt. Stat. Ann. tit. 18, § 4231 (West, Westlaw through No. 115 of 2015–2016 Gen. Assemb. except Act Nos. 103 & 113); Va. Code Ann. § 18.2–248 (West, Westlaw through end of 2015 Reg. Sess.); Wash. Rev. Code Ann. § 69.50.401 (West, Westlaw through 2016 Reg. Sess.); W. Va. Code Ann. § 60A–4–401 (West, Westlaw through 2016 Reg. Sess. legis.); Wis. Stat. Ann. § 961.41 (West, Westlaw through 2015 Act 392); Wyo. Stat. Ann. § 35–7–1031 (West, Westlaw through 2015 Gen. Sess.). 43

and a misdemeanor in others—a difference that might challenge the

continuing nature of the infamy attaching to offense. Instead, for over

ninety years it has been and still remains a serious crime in this state.

Any easing of the societal judgment toward the criminal nature of some

drugs and some types of offenses remains nebulous, and in no cases we

could find has the easing extended to cocaine delivery. It is not

misplaced within our law as a felony offense.

Griffin’s remaining challenges to the statutes and regulations

governing voting and the restoration process were dependent on a finding

that her conviction did not qualify as an infamous crime. Since we

conclude that infamous crime under the constitution means felony

crime, we need not address these issues.

Our great advantage as a democracy is found in the clamor of

debate democracy encourages. See 1 Alexis de Tocqueville, Democracy in

America 265–67 (Henry Reeve trans., D. Appleton Co. 1904) (1835). This

advantage, however, is not always shared equally among all people in all

issues. The clamor of debate most often occurs for those issues that

affect those people with the most powerful voices. Yet all issues need the

clamor of debate to advance. Moreover, debate is not just needed for the

politics of democracy. It is also needed by courts when called to interpret

constitutional doctrine in our evolving world to hear the judgment of the

legislature, our citizens, social science, and the scientific disciplines.

In this case, the legislative judgment was clearly expressed, and

there are no facts or scientific evidence to undermine that judgment. In

truth, the clamor of debate has largely passed over the issue of

disqualifying voters in Iowa for a conviction of an infamous crime, and

courts are unable to move issues forward on their own perceptions of

infamy in today’s society. In this case, there is insufficient evidence to 44

overcome the 1994 legislative judgment, and we must accept it today as

the standard for infamous crime. It will be up to our future democracy

to give the necessary voice to the issue and engage in the debate that

advances democracy.

In the end, we are constrained to conclude that all objective indicia

of today’s standard of infamy supports the conclusion that an infamous

crime has evolved to be defined as a felony. This is the community

standard expressed by our legislature and is consistent with the basic

standard we have used over the years. It is also consistent with the

constitutional history, text, and purpose of the provision.

VIII. Conclusion.

We affirm the district court’s grant of summary judgment in favor

of Secretary of State Pate and Lee County Auditor Fraise and dismissal of

Griffin’s claim.

AFFIRMED.

Waterman, Mansfield, and Zager, JJ., join this opinion. Wiggins,

J., files a dissenting opinion in which Hecht and Appel, JJ., join. Hecht,

J., files a dissenting opinion in which Wiggins and Appel, JJ., join.

Appel, J., files a dissenting opinion in which Wiggins and Hecht, JJ.,

join. 45

#93/15–1661, Griffin v. Pate

WIGGINS, Justice (dissenting).

In Chiodo v. Section 43.24 Panel, I was compelled to dissent from

the plurality decision. 846 N.W.2d 845, 863–65 (Iowa 2014) (Wiggins, J.,

dissenting). In doing so, I made two points. The first was that it is this

court’s duty and obligation, not the legislature’s, to interpret the meaning

of the phrase “infamous crime” in article II, section 5 of the Iowa

Constitution. Id. at 864. It appears from the opinions filed today, the

court agrees with this principle. Today, I reaffirm my position on this

point of law.

I also agree with the court’s view that the Iowa Constitution is a

living document. As we have said numerous times in our jurisprudence:

[W]e recognize that unlike statutes, our constitution sets out broad general principles. A constitution is a living and vital instrument. Its very purpose is to endure for a long time and to meet conditions neither contemplated nor foreseeable at the time of its adoption. Thus the fact a separate juvenile court system was not in existence at the time our constitution was adopted in 1857 should not blindly mandate an absurd result because our forefathers had not yet seen fit to establish a separate juvenile court system. Sometimes, as here, the literal language must be disregarded because it does violence to the general meaning and intent of the enactment.

In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977) (citations omitted); see

also State v. Barker, 116 Iowa 96, 105, 89 N.W. 204, 207 (1902) (reciting

these same principles over 100 years ago).

In my Chiodo dissent, I also expressed unwillingness to deviate

from our prior caselaw defining “infamous crimes” due to the uncertainty

it would cause for voters and election officials in this state. 846 N.W.2d

at 864–65. Today I am prepared to change my position on this point. I

do so for two reasons. First, Justices Appel and Hecht have set forth 46

compelling reasoning and analysis in their opinions concerning how

voters and election officials can determine who is an eligible voter.

Additionally, the majority’s analysis is flawed in that it does not truly

consider the consensus among other states, most of which allow at least

certain felons to vote. By focusing solely on our cruel-and-unusual-

punishment jurisprudence to arrive at its conclusion, the majority’s

incomplete analysis gives short shrift to a matter concerning individual

rights. Its approach represents a stark retreat from the robust analysis

of individual rights under the Iowa Constitution this court traditionally

applies. See generally Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)

(applying our traditional approach to matters involving individual rights

under the Iowa Constitution).

More importantly, the brief of the Polk County Auditor has caused

me to reevaluate my thoughts on this issue. The Polk County Auditor

administers the election in the largest and most diverse county in the

state. In his brief, he states that under a protocol similar to that urged

by Justices Appel and Hecht, he would be able to implement and

administer a policy that would ensure all persons with prior felony

convictions who were eligible to vote could do so.

For this reason, I cannot join the majority opinion. Therefore, I

dissent and join Justices Appel and Hecht in their dissents.

Hecht and Appel, JJ., join this dissent. 47

#15–1661, Griffin v. Pate

HECHT, Justice (dissenting).

I do not share the majority’s conclusion that Griffin was convicted

of an “infamous crime” supporting her disenfranchisement under article

II, section 5 of the Iowa Constitution or Iowa Code section 39.3(8)

(2013). 18 I believe an infamous crime that disqualifies a citizen from

voting must at least feature some nexus to the electoral process.

Accordingly, I respectfully dissent.

The majority concludes Griffin’s 2008 conviction of delivery of 100

grams or less of cocaine in violation of Iowa Code section

124.401(1)(c)(2)(b) (2007), a Class “C” felony, is an infamous crime. 19

The majority also notes all fifty states criminalize delivery of cocaine and

the offense is a serious one causing continuing harm to society.

As the majority correctly observes, the drafters of our constitution

did not define “infamous” in this context. The many meanings courts

and legal scholars assigned to the word over the centuries are well

documented in the majority’s opinion. Although the legislature

expressed its understanding in 1994 that all felony crimes are infamous

for purposes of identifying eligible voters, see 1994 Iowa Acts ch. 1169, § 7, the task of interpreting the Iowa Constitution falls to this court—not

18In addition to her challenge to section 39.3(8) as applied, Griffin contends several other statutes regulating election processes—including Iowa Code sections 43.18(9), 48A.6(1), 48A.14(1)(e), 48A.30(1)(d), 49.79(2)(f) and 57.1(2)(c)—as well as the current voter registration forms and related regulations, the Governor’s Executive Order 70, and related procedures all serve to disqualify persons convicted of noninfamous felony offenses as electors and are therefore unconstitutional as applied. 19Griffin also has a 2001 conviction for possession of ethyl ether in violation of Iowa Code section 124.401(4)(c) (2001), a Class “D” felony. That conviction is not relevant in this case because Griffin discharged the sentence in 2006, when Executive Order 42 was in force, and Executive Order 70 does “not affect the restoration of rights . . . granted prior to” its 2011 effective date. 48

the legislature. See Varnum v. Brien, 763 N.W.2d 862, 875 (Iowa 2009);

see also Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 853 (Iowa 2014)

(“In the end, it is for the courts to interpret the constitution.”); Peel v.

Burk, 197 N.W.2d 617, 622 (Iowa 1972) (Reynoldson, J., dissenting)

(“This court, not the legislature, is empowered to interpret the

constitution.”). “The legislature may not add to or subtract from the

voter qualifications under the constitution.” Chiodo, 846 N.W.2d at 852;

Coggeshall v. City of Des Moines, 138 Iowa 730, 737, 117 N.W. 309, 311

(1908).

In the plurality opinion in Chiodo, Chief Justice Cady explained

“the concept of disenfranchisement was not meant to punish certain

criminal offenders or persons adjudged incompetent, but to protect the

‘purity of the ballot box.’ ” Chiodo, 846 N.W.2d at 855 (quoting Snyder v.

King, 958 N.E.2d 764, 781 (Ind. 2011)). Further explicating the drafters’

objective in article II, section 5, he wrote,

Our drafters wanted the voting process in Iowa to be meaningful so that the voice of voters would have effective meaning. Thus, disenfranchisement of infamous criminals parallels disenfranchisement of incompetent persons under article II, section 5. The infamous crimes clause incapacitates infamous criminals who would otherwise threaten to subvert the voting process and diminish the voices of those casting legitimate ballots. As a result, the regulatory focus of disenfranchisement under article II reveals the meaning of an “infamous crime” . . . looks not only to the classification of the crime itself, but how a voter’s conviction of that crime might compromise the integrity of our process of democratic governance through the ballot box.

Id. at 856. I joined the plurality opinion in Chiodo, see id. at 857, and I

continue to believe the animating purpose of the disenfranchisement

clause is the protection of the voting process and the integrity of the

institutions of democratic governance. With this fundamental

understanding of the purpose of the clause, I now turn to the analytical 49

framework for deciding whether the district court erred in interpreting

Iowa Code section 39.3(8) (2013) and article II, section 5 of the Iowa

Constitution.

The right Griffin asserts—the right to vote—is a fundamental right.

Devine v. Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978); accord Chiodo,

846 N.W.2d at 848 (“Voting is a fundamental right in Iowa, indeed the

nation.”). Voting occupies a “vital role in our system of government by

providing citizens with a voice in our democracy and in the election of

those who make the laws by which all must live.” Chiodo, 846 N.W.2d at

848. Although this right is essential to fulsome participation in self-

government, it is not absolute. Id. at 849. Because the right is

fundamental, we must apply strict scrutiny in deciding Griffin’s claim. A

law that impedes a fundamental right is unconstitutional if it is not

narrowly tailored to serve a compelling government interest. Santi v.

Santi, 633 N.W.2d 312, 317 (Iowa 2001). In my view, disenfranchising

voters for class “C” felony drug offenses will not advance the integrity of

elections or institutions of government. Indeed, I am not convinced that

Griffin’s conviction for delivery of cocaine or her subsequent exercise of

the right to vote will tend to threaten or subvert the voting process; nor

will it diminish in any untoward manner the voices of other voters.

I further conclude section 39.3(8) and the related statutes

disenfranchising all felons fail to pass strict scrutiny analysis because

the classification of all felonies as infamous crimes is not narrowly

tailored to serve any legitimate purpose of the disqualification clause.

The statute’s definition of infamous instead sweeps broadly past those

crimes which might be plausibly understood to diminish the integrity of

the voting process or the integrity of democratic institutions of

governance, and it disenfranchises persons—like Griffin—whose criminal 50

conduct is completely unrelated to any legitimate nonpunitive and

protective purpose of the disqualification clause.

Our strict scrutiny of the statutory framework disenfranchising

Griffin and others similarly situated cannot be driven by majoritarian

preferences about the propriety of disqualifying all felons as electors.

Given the fundamental nature of the right to vote, we should not deny it

to Griffin just because most folks favor disenfranchisement of all felons;

neither should we deny her the right because “that is the way it’s always

been in Iowa” or because “that’s the way it’s done elsewhere.” Our

scrutiny must instead confront the hard question of whether there is a

compelling governmental interest in disenfranchising her for drug-related

offenses. In my view, there is not.

The notion that allowing Griffin to vote will render the ballot box

impure, disrupt the electoral process, or damage institutions of

democratic governance is fanciful at best. I posit there is no legitimate

basis for concluding Griffin’s vote will have any such adverse effects; and

precluding her vote will, in my view, advance no compelling government

interest. Her disenfranchisement instead seems to rest on the notion

that allowing convicted felons who have discharged their sentences to

vote “will taint the body politic.” Mary Sigler, Defensible

Disenfranchisement, 99 Iowa L. Rev. 1725, 1730 (2014) [hereinafter

Sigler]. But that notion is misguided because it relies on the “mystical

claim” that all felons are tainted and therefore will somehow infect the

entire electoral process, see George P. Fletcher, Disenfranchisement as

Punishment: Reflection on the Racial Uses of Infamia, 46 UCLA L. Rev.

1895, 1899 (1999), and because it is “a call for retribution with no

tangible benefit,” Mark Haase, Civil Death in Modern Times: Reconsidering 51

Felony Disenfranchisement in Minnesota, 99 Minn. L. Rev. 1913, 1933

(2015) [hereinafter Haase].

In reaching my conclusion that section 39.3(8) and the related

statutes relied upon by the respondents in denying Griffin access to the

polls fail to serve a compelling government interest, I am aided by

“constitutional facts,” including public policy arguments. See Varnum,

763 N.W.2d at 881, 898–906 (analyzing “all of the material tendered by

the parties,” including public policy arguments, to assist in the review of

the constitutionality of a statute); Santi, 633 N.W.2d at 318–19

(considering whether a law “strengthen[ed] extended familial bonds” or

caused “family disruption” in deciding a constitutional challenge to a

statute). I have also considered the societal impact of denying the

franchise to those convicted of noninfamous crimes. See Varnum, 763

N.W.2d at 881 (noting “judicial decision-making in the context of

constitutional issues” may require courts to analyze facts beyond those

relating to the parties and their particular circumstances, including

“social, economic, political, or scientific facts”).

Following the issuance of Executive Order 70, more than 14,000

Iowans were disenfranchised in almost four years. See Editorial, No Vote

for Iowa’s Felons, Cedar Rapids Gazette (Dec. 7, 2014),

www.thegazette.com/subject/opinion/staff-editorial/no-vote-for-iowas-

felons-20141207 (reporting that from January 2011 to December 2014,

“roughly 14,500” Iowans completed their sentences after committing a

felony, but fewer than 100 regained their voting rights). Because many

of these disenfranchised felons—like Griffin—were convicted of crimes

having no relationship to the integrity of the electoral process or other

democratic institutions, I believe a negative societal impact has occurred.

Voting encourages persons to become informed about and involved in 52

their communities’ civic affairs—behaviors that maximize the chances of

rehabilitation for those convicted of crimes. Disqualification, on the

other hand, stigmatizes felons and undermines their reintegration to

society by treating them as second-class citizens even after they have

served their prison sentences. See, e.g., Atiba R. Ellis, Tiered Personhood

and the Excluded Voter, 90 Chi.-Kent L. Rev. 463, 477 (2015)

(“[D]isenfranchisement creates a permanent underclass of citizenry

whose interests are not heard . . . with no hope of ever effectively

reengaging with society.”); Sigler, 99 Iowa L. Rev. at 1739 (“[P]ermanent

exclusion of offenders, certainly those already released from prison, is

tantamount to political exile and inconsistent with the rights and

responsibilities of citizenship . . . .”); Howard Itzkowitz & Lauren Oldak,

Note, Restoring the Ex-Offender’s Right to Vote: Background and

Developments, 11 Am. Crim. L. Rev. 721, 732 (1973) (“The offender finds

himself released from prison, ready to start life anew and yet at election

time still subject to the humiliating implications of disenfranchisement

. . . . Denying him the right to vote forbids his participation in the most

crucial function of a democratic society—the electoral process—and is

likely to reaffirm feelings of alienation and isolation, both so detrimental

to the reformation process.”). Some evidence even suggests

disenfranchisement is associated with increased crime rates. See

Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and

Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev.

193, 213 (2004) (collecting data and concluding “a relationship between

voting and subsequent crime and arrest is . . . supported by empirical

evidence”); see also Hadar Aviram & Jessica L. Willis, Reintegrating

Citizens: Felon Enfranchisement, Realignment, and the California

Constitution, 27 J. C.R. & Econ. Dev. 619, 652–53 (2015) (discussing two 53

studies); Haase, 99 Minn. L. Rev. at 1927 (“The evidence shows that

disenfranchisement does not deter crime or lower recidivism. Public

safety is thus not advanced and may actually be undermined by felony

disenfranchisement.”).

Disenfranchisement of noninfamous felons also tends to depress

the votes of others. The propensity of young people to vote is correlated

with their parents’ behavior and resources. Eric Plutzer, Becoming a

Habitual Voter: Inertia, Resources, and Growth in Young Adulthood, 96

Am. Pol. Sci. Rev. 41, 42–43 (2002). Accordingly, a parent’s

disenfranchisement tends to discourage voting by other family members.

See Christopher Haner, Felon Disenfranchisement: An Inherent Injustice,

26 J. C.R. & Econ. Dev. 911, 917 (2013) [hereinafter Haner] (“Individuals

who are not disenfranchised . . . , especially those with parents who have

suffered disenfranchisement, may not feel that voting is important or

may feel that it is a useless exercise of political power because they do

not see the fruits of exercising this right.”); see also Erika Wood,

Restoring the Right to Vote 12 (2009), www.brennancenter.org/

sites/default/files/legacy/Democracy/Restoring%20the%20Right%20to

%20Vote.pdf.

When disproportionate numbers of citizens in the same community

are denied the right to vote, the political power of the community’s

residents—including those who have never been convicted of a crime—is

weakened. See Aman McLeod et al., The Locked Ballot Box: The Impact of

State Criminal Disenfranchisement Laws on African American Voting

Behavior and Implications for Reform, 11 Va. J. Soc. Pol’y & L. 66, 77–78

(2003) (collecting voter turnout data, comparing it among states, and

concluding “mean voter turnout . . . is statistically lower in states with

moderately to extremely restrictive disenfranchisement laws”); Reuven 54

Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and

International Human Rights Perspectives, 29 B.U. Int’l L.J. 197, 208

(2011) (“[E]xpelling the convict from the community fails to recognize that

she remains a community member.”); see also Haner, 26 J. C.R. & Econ.

Dev. at 917 (“If a neighborhood has a large number of citizens living in it

who are disenfranchised, the community loses power . . . .”).

I am persuaded that disenfranchising persons convicted of

noninfamous offenses has other deleterious social consequences. It is a

component of the “otherness” observed by one commentator, promoting a

separation between community members and law enforcement officers.

See William Stuntz, The Collapse of American Criminal Justice 310–12

(2011). As a result, the effectiveness of community policing may be

undermined, especially in communities with high rates of

disenfranchisement. Cf. id.

I emphasize here my purpose is not to diminish the gravity of

Griffin’s felony conviction, for which she has been sentenced and

punished. I merely conclude continuing to disenfranchise her for that

conviction serves no compelling government interest. Because I believe

Griffin’s disenfranchisement undermines the government’s compelling

interest in her rehabilitation and reintegration to society after her

sentence was discharged, I would reverse the district court and remand

for entry of a judgment declaring Griffin’s 2008 criminal conviction does

not render her presumptively ineligible to vote.

Wiggins and Appel, JJ., join this dissent. 55

APPEL, Justice (dissenting).

The majority does its best to interpret an anachronistic

constitutional provision in the modern context. It is not an easy task.

For the reasons expressed below, I come to a different conclusion than

the majority. I believe the term “infamous crime” in article II, section 5 of

the Iowa Constitution does not sweep so far as to disqualify Griffin from

voting. As a result, I respectfully dissent.

In this case, Griffin has fully satisfied the demands of the criminal

law as enacted by the Iowa legislature and she has been discharged from

the criminal justice system. In colloquial terms, she has paid her debt to

society and returned to normal life. The question here is whether the

Iowa Constitution permits the legislature to prohibit all felons—

regardless of the nature of the underlying crime—from exercising the

fundamental right to vote after the criminal sanctions imposed as a

result of conviction have been fully satisfied.

The question is determined by our interpretation of article II of the

Iowa Constitution dealing with the right of suffrage. Article II, section 1

generally provides that every citizen who is a resident of the state “shall

be entitled to vote at all elections.” Iowa Const. art. II, § 1. More than a

hundred years ago, we stated that the right to vote is “a political right of

the highest dignity.” Coggeshall v. City of Des Moines, 138 Iowa 730,

737, 117 N.W. 309, 312 (1908). More recently, the United States

Supreme Court has said, “It is beyond cavil that ‘voting is of the most

fundamental significance under our constitutional structure.’ ” Burdick

v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059, 2063, 119 L. Ed. 2d 245,

252 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440

U.S. 173, 184, 99 S. Ct. 983, 990, 59 L. Ed. 2d 230, 241 (1979)). 56

Yet article II, section 5 of the Iowa Constitution disqualifies from

voting persons “adjudged mentally incompetent to vote” or “convicted of

any infamous crime.” Our task is to determine the boundary between

the powerful, general command of article II, section 1—vesting the right

to vote in every citizen—with the exception provided in article II, section

5—disqualifying persons convicted of infamous crimes from voting. See

Hutchins v. Hanna, 179 Iowa 912, 916, 162 N.W. 225, 227 (1917) (“[I]n

interpreting the Constitution, the court should consider all matter in pari

materia; and all provisions on the same subject matter shall, if possible,

be given effect.”).

This case involves three questions. First, what branch of

government decides where the boundary lies between these two

provisions? Second, what substantive standards should the responsible

branch of government use in placing the boundary? Third, how should

the standards be applied in the case of Griffin?

In answering the first question—which branch of government is

responsible for deciding where the boundary lies—I begin with analysis of

the text of article II, section 5 and the historical context surrounding its

development. The “infamous crimes” language of article II, section 5

arose from the Iowa Constitution of 1846. Iowa Const. of 1846, art. III,

§ 5. Prior to 1846, however, a number of state constitutions expressly

vested the power to determine what crimes disqualified persons from

voting in their legislatures. For example, the Indiana Constitution of

1816 provided, “The general assembly shall have full power to exclude

from electing, or being elected, any person convicted of any infamous

crime.” Ind. Const. of 1816, art. VI, § 4; see Snyder v. King, 958 N.E.2d

764, 774–75 (Ind. 2011). Similarly, the Illinois Constitution of 1818

stated, “The General Assembly shall have full power to exclude from the 57

privilege of electing or being elected any person convicted of bribery,

perjury or any other infamous crime.” Ill. Const. of 1818, art. II, § 30.

The Missouri Constitution of 1820 also provided that “[t]he general

assembly shall have power to exclude . . . from the right of suffrage, all

persons convicted of bribery, perjury, or other infamous crime.” Mo.

Const. of 1820, art. III, § 14. The Rhode Island Constitution of 1842

expressly vested in its legislature power over suffrage, stating, “Nor shall

any person convicted of bribery, or of any crime deemed infamous at

common law, be permitted to exercise that privilege, until he be expressly

restored thereto by act of the General Assembly.” R.I. Const. of 1842,

art. II, § 4.

Like the state constitutions of Indiana, Illinois, Missouri, and

Rhode Island, the proposed Iowa Constitution of 1844 explicitly vested

the general assembly with the power to regulate the franchise. Under the

proposed Iowa Constitution, persons were disqualified from voting when

their crimes were declared “infamous by act of the legislature.” Iowa

Const. of 1844, art. III, § 5. In the Iowa Constitution of 1846, however,

the legislature no longer had a role in determining disqualification of

voters related to infamous crimes. The power of the legislature was

deleted, and instead, article III, section 5 simply stated that persons

“convicted of any infamous crime” were disqualified. Iowa Const. of

1846, art. III, § 5.

Against the historical backdrop, I conclude that the deletion of

legislative authority in article III, section 5 should be given its intended

effect. The determination of which crimes might qualify as infamous for

purposes of disqualification from suffrage rests with the court, not with

the general assembly. The plurality in Chiodo v. Section 43.24 Panel

came to the right conclusion on this issue. 846 N.W.2d 845, 855 (Iowa 58

2014) (“[I]t appears the drafters at our 1857 constitutional convention

intended to deprive the legislature of the power to define infamous

crimes.”).

I now turn to the second question: What standard should the court

apply to determine which crimes are infamous? This is a difficult

question, as the term “infamous crime” is famously ambiguous. As noted

by the Supreme Court of Missouri in 1858, the term “infamous” is of

“indefinite import.” Birch v. Benton, 26 Mo. 153, 159 (1858). In Chiodo,

the plurality correctly noted that “[a]ny definition of the phrase ‘infamous

crime’ has vast implications and is not easy to articulate.” 846 N.W.2d

at 856. If there is any agreement in this case, it is that the term

“infamous crime” is ambiguous.

Yet the overall textual context may narrow the range of interpretive

options for ambiguous terms and phrases. Specifically, the drafters of

the Iowa Constitution of 1846 distinguished between the terms

“infamous crimes” and “felonies.” In several places, the Iowa

Constitution used the term “felony.” In article III, section 2 the framers

used the language “treason, felony, or breach of peace.” Iowa Const. of

1846, art. III, § 2. The same phrase is used in article IV, section 12,

which prevented representatives and senators from being arrested when

serving at the General Assembly for all but those crimes. Iowa Const.

art. IV, § 12.

But the framers did not use the term “felony” in article II, section 5

of the Iowa Constitution of 1857. If the 1846 and 1857 framers wished

to disenfranchise all felons, they could have said so. We have often said

that when a legislative body uses different terms in an enactment we

assume different meanings are intended. Johnson v. Iowa Dist. Ct., 756

N.W.2d 845, 850 (Iowa 2008), superseded by statute on other grounds, 59

2009 Iowa Acts ch. 116, § 1; Miller v. Marshall County, 641 N.W.2d 742,

749 (Iowa 2002). Since the framers rejected the term “felony” as the test

for voter disqualification, it would be doubly odd to allow the rejected

term to be reinserted as a result of legislative action, particularly when

the constitutional drafters eliminated the role of the legislature in

defining infamous crimes.

Further, other state constitutions use the term “felony” to

disqualify voters. See, e.g., Del. Const. of 1831, art. IV, § 1 (“[N]o . . .

person convicted of a crime deemed by law felony, shall enjoy the right to

an elector . . . .”); Minn. Const. of 1857, art. VII, § 2 (“[N]o person who

has been convicted of treason, or any felony . . . shall be entitled or

permitted to vote at any election in this State.”). Iowa simply chose

different language.

To me, the text and related history make it quite clear that the

court must determine the meaning of the term “infamous crimes” and

that the term is not synonymous with “felony.” This, of course, is not the

end of the matter, but only a good beginning. Having determined that

the responsibility is vested with the courts to determine the meaning of

infamous crimes and that infamous crimes are not the equivalent of

felonies does not decide the question before us. While all felonies are not

infamous crimes, does Griffin’s felony conviction of delivery of cocaine

qualify as an infamous crime under article II, section 5?

I now turn to the functional context, which may help bring an

ambiguous term into clearer focus. In some circumstances, the context

in which a general term is used will cause us to give it a narrow

interpretation. See Des Moines Flying Serv., Inc. v. Aerial Servs., Inc., 880

N.W.2d 212, 221 (Iowa 2016) (declaring “[c]ontext is king” in

interpretation of an U.C.C. provision); U.S. Bank Nat’l Ass’n v. Lamb, 874 60

N.W.2d 112, 119 (Iowa 2016) (interpreting “all liens” to mean all

judgment liens based on context); Iowa Ins. Inst. v. Core Grp. of Iowa

Ass’n for Justice, 867 N.W.2d 58, 72 (Iowa 2015) (giving a narrow

interpretation to the broad phrase “all information” based on context).

These cases stand for the commonsense proposition that general phrases

with potentially broad application may be given a narrow interpretation

when the context of the phrase so requires.

The question is thus not free-standing or abstract. Instead, as

noted by Professor LaFave, the meaning of the term “infamous crime”

may “depend, to a large extent, on the purpose for which the distinction

is to be made.” 1 Wayne R. LaFave, Substantive Criminal Law § 1.6(d),

Westlaw (database updated Oct. 2015) [hereinafter LaFave]; see also 21

Am. Jur. 2d Criminal Law § 23 (2016) (“The meaning of the term

‘infamous crime’ may vary according to the context in which it arises

. . . .”). The specific question here is the meaning of the term “infamous

crime” in the context of the constitutional disqualification of a citizen

from the fundamental right to vote as an elector.

I take the lesson of these cases and authorities and apply them

here. For instance, in the context of entitlement to presentation before a

grand jury under the Fifth Amendment, the term “infamous crime” turns

on the length of punishment. Ex parte Wilson, 114 U.S. 417, 425–26, 5

S. Ct. 935, 939, 29 L. Ed. 89, 92 (1885). A completely different

approach, however, has been taken to the definition of infamous crime in

the context of competency of a person to testify. In this context, an

infamous crime is determined not by the length of punishment, but on

the nature of the crime. See, e.g., Palmer v. Cedar Rapids & Marion Ry.,

113 Iowa 442, 447, 85 N.W. 756, 758 (1901) (“It is well settled that in

determining whether the crime . . . is an infamous crime, which will 61

disqualify him from testifying, the nature of the crime, and not the

punishment which may be inflicted therefor, is the test.”); 1 Charles F.

Partington, The British Cyclopeadia of Literature, History, Geography,

Law, and Politics 847 (1836) (“A third ground of incompetency is infamy

of character. . . . It is not sufficient that a party has been convicted and

punished for a crime; nor that the punishment itself is deemed by the

public degrading and infamous. But the offense must, in its own nature,

be infamous.”). Here, the question is whether a crime is considered

infamous in the context of disqualification as an elector.

In several of our prior cases, we assumed that Wilson’s treatment

of infamous crime in the context of grand jury indictment provided the

proper framework for evaluating the meaning of the term in the context

of voter disqualification. 114 U.S. at 429, 5 S. Ct. at 941, 29 L. Ed. at

93. For instance, in Blodgett v. Clarke we considered whether a person

who had been convicted of forgery was eligible to run for a position on

this court, which was then an elected position. 177 Iowa 575, 578, 159

N.W. 243, 244 (1916) (per curiam), overruled by Chiodo, 846 N.W.2d at

852. Citing Flannagan v. Jepson, 177 Iowa 393, 399–400, 158 N.W. 641,

643 (1916), which in turn cited Wilson, we held that because forgery was

subject to imprisonment in the penitentiary, it would be considered an

infamous crime. Blodgett, 177 Iowa at 578, 159 N.W. at 244. But the

cut-and-paste job transferring the holding of Wilson into the different

contexts of voter qualification or qualification to hold office, as the Chiodo

plurality pointed out, is not persuasive. 846 N.W.2d at 851.

In considering the meaning of infamous crime in the context of

voter disqualification, Professor LaFave concludes that the meaning

should track the meaning of the term in the context of competency of 62

witnesses rather than the context of grand jury indictment. 1 LaFave

§ 1.6(d). According to Professor LaFave,

Where the purpose was in former times to render a witness incompetent (or today to authorize the impeachment of the witness), the term “infamous” properly has reference to those crimes involving fraud or dishonesty or the obstruction of justice (sometimes called crimen falsi). Where the term is used in connection with disbarment or disqualification to hold office, vote or serve on a jury, it generally has a similar meaning.

Id.

Professor LaFave cites Snyder in support of his approach. Id.

§ 1.6(d) n.80. In Snyder, the Indiana Supreme Court concluded that the

term “infamous crime” was not synonymous with felony for purposes of

the infamous crimes clause of the Indiana Constitution. 958 N.E.2d at

771. The Snyder court reasoned that the definition of infamous crime

rests upon the context in which it is used. Id. at 777. The Snyder court

recognized that in the context of qualification of witnesses, the focus is on the nature of the crime itself and not the punishment. Id. at 778.

The Snyder court rejected the proposition that all modern felonies are

infamous, noting that under traditional Indiana evidence law, only nine

classic common law offenses were considered infamous. Id. at 779.

Similarly, infamous crimes under Iowa evidence law traditionally were

treason, crimen falsi, and felonies at common law. Carter v. Cavenaugh,

1 Greene 171, 176 (Iowa 1848).

The Snyder court noted that the Webster’s dictionary

contemporaneous with the enactment of the Indiana Constitution defined

infamous as “most vile; base; detestable.” 958 N.E.2d at 780 (quoting

Noah Webster, A Dictionary of the English Language 202 (rev. ed. 1850)).

For the Indiana court, the question was what crimes could be considered

“most vile; base; detestable” in the context of the purpose of the 63

constitutional provision disqualifying persons convicted of infamous

crimes. Id. The purpose of the constitutional provision, according to the

Snyder court, was “to preserve the integrity of elections.” Id. at 782. In

order for a crime to be infamous under the regulatory constitutional

provision, there had to be a nexus between the crime and the regulatory

purposes of the statute. Id. Infamous crimes, for the purpose of voter

disqualification, thus were those crimes involving “an affront to

democratic governance or the public administration of justice such that

there is a reasonable probability that a person convicted of such a crime

poses a threat to the integrity of elections.” Id. The Snyder court

concluded that there was no such nexus between the crime at issue—

battery—and protection of the “integrity of the election process.” Id. at

782–83.

The Snyder court cited the California case Otsuka v. Hite, 414 P.2d

412 (Cal. 1996) (en banc), 20 in support of its holding. 958 N.E.2d at

781–82. In Otsuka, the California Supreme Court considered whether

conviction of failure to register for selective service amounted to an

infamous crime sufficient to disenfranchise the voter under the California

Constitution. 414 P.2d at 414. Significantly, the disqualification provision in the California Constitution was nearly identical to article II,

section 5 of the Iowa Constitution and in all likelihood was actually

20The California Supreme Court overruled Otsuka in Ramirez v. Brown, 507 P.2d 1345, 1353 (Cal. 1973). In Ramirez, however, the California Supreme Court overruled Otsuka not because it went too far in protecting the right to vote, but because it did not go far enough. Id. The Ramirez court ruled that the California constitutional provision violated federal equal protection because it imposed undue burdens on the right to vote. Id. Ramirez was then overturned on appeal by the United States Supreme Court. Richardson v. Ramirez, 418 U.S. 24, 56, 94 S. Ct. 2655, 2671, 41 L. Ed. 2d 551, 572 (1974). Because of Otsuka’s unique procedural history, the Snyder court’s reliance on its reasoning remains apt. 64

based upon the Iowa constitutional provision since the delegates to the

1849 California constitutional convention had the Iowa Constitution as a

model. See J. Ross Browne, Report of the Debates in the Convention of

California 24 (1850) (reporting that every member of the convention was

provided a copy of the Constitution of Iowa to “take into consideration

. . . as a basis for the Constitution of California”).

The Otsuka court distinguished between infamous crimes for

purposes of determining when charges must be brought before the grand

jury and infamous crimes for purposes of determining the competency of

a person to testify. 414 P.2d at 421. The Otsuka court held that the

purpose of disqualification was to prevent “morally corrupt and dishonest

voters [who] . . . may reasonably be deemed to constitute a threat to the

integrity of the elective process.” Id. at 422 (emphasis added). Finding no

threat to the elective process, the Otsuka court determined that

conviction for selective service crimes should not be considered infamous

under the constitutional provision. Id. at 425.

Turning to the proper approach to the Iowa Constitution, I begin

with the proposition that the disqualification provision of article II,

section 5 should be narrowly construed for two reasons. First, the right

to vote is fundamental to the democratic process, and as noted by the

Chiodo plurality, abridging the right to vote “must be carefully and

meticulously scrutinized.” 846 N.W.2d at 856 (quoting Devine v.

Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978)). Second, article II, section

5 is a forfeiture provision. The law has traditionally construed forfeiture

provisions in a narrow fashion. See, e.g., In re Wagner, 482 N.W.2d 160,

162 (Iowa 1992); In re Kaster, 454 N.W.2d 876, 877 (Iowa 1990); 3A

Norman J. Singer & Shambie Singer, Statutes and Statutory Construction

§ 68:5, at 340 (7th ed. 2010). 65

Based on the above considerations, I conclude that the approach

in Snyder is the correct one. 958 N.E.2d at 779, 782–83. Infamous

crimes, for purposes of article II, section 5, are those that undermine the

integrity of the election process. As suggested by LaFave, these infamous

crimes are crimen falsi—crimes where the honesty and integrity of the

convicted person is drawn in question, or crimes that interfere with the

electoral process. See 1 LaFave § 1.6(d).

I now turn to the final question: the application of the standard to

this case. I think it is clear that Griffin’s drug crimes do not qualify as

crimen falsi or crimes that interfere with the electoral process. No one

would seriously argue that Griffin—who was placed on probation after

her conviction and now has fully discharged her sentence—poses any

threat to the integrity of the electoral process or that allowing her to vote

threatens the administration of justice. Further, her crime was certainly

not treason or common law felony. Carter, 1 Greene at 177. I would

thus find that Griffin was not convicted of an infamous crime and that

she is entitled to exercise the fundamental right to vote of every citizen

under article II, section 1 of the Iowa Constitution.

I close with some observations on the implications of this case

pointed out by amici who filed helpful briefs in this case. As pointed out

by the briefs of the NAACP Legal Defense and Educational Fund and the

League of Women Voters, the history of voter disqualification has

disturbing features. In southern states after reconstruction, voter

disqualification on the grounds of being convicted of infamous crimes

was used as a tool to prevent African Americans from voting. Indeed, the

Mississippi Supreme Court candidly explained that the purpose of its

constitutional provision prohibiting persons from voting based on

conviction of various offenses was to “obstruct the exercise of the 66

franchise by the negro race.” Ratliff v. Beale, 20 So. 865, 868 (Miss.

1896). In 1985, the Supreme Court held that Alabama’s constitutional

provision disenfranchising persons convicted of a crime of moral

turpitude violated equal protection under the United States Constitution.

Hunter v. Underwood, 471 U.S. 222, 233, 105 S. Ct. 1916, 1922, 85

L. Ed. 2d 222, 231 (1985). The Hunter Court concluded that the crimes

selected for inclusion as crimes of moral turpitude “were believed by the

delegates to be more frequently committed by blacks.” Id. at 227, 105

S. Ct. at 1919, 85 L. Ed. 2d at 227.

While there is no allegation of intentional discrimination in this

case, the amici point out that felony disenfranchisement has grossly

disproportionate effects on African American males. Researchers at the

Sentencing Project estimate that approximately twenty-five percent of

African American males in Iowa are disenfranchised by the legislature’s

implementation of article II, section 5. R.A. Lenhardt, Understanding the

Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. Rev. 803, 918–

19 (2004) (citing The Sentencing Project & Human Rights Watch, Losing

the Vote: The Impact of Felony Disenfranchisement Laws in the United

States 8 (1998)). The exclusion of ex-felons in Iowa has produced a

disenfranchisement rate for African Americans in Iowa that is “more than

triple” the national rate. The Sentencing Project, Iowa and Felony

Disenfranchisement 2 (2005), https://web.archive.org/web/

20131019085622/http://www.sentencingproject.org/doc/publications/

fd_iowa.pdf.

The amici further point out that disproportionate voter

disenfranchisement does not simply impact the individual, but penalizes

the communities from which wrongdoers come and reduces their political

clout. As noted by the League of Women Voters, “[o]ne of the most 67

prominent and consistent finding[s] in [the] literature is that [felony

disenfranchisement] laws produce a disproportionate effect on black

communities.” See Melanie Bowers & Robert R. Preuhs, Collateral

Consequences of a Collateral Penalty: The Negative Effect of Felon

Disenfranchisement Laws on the Political Participation of Nonfelons, 90

Soc. Sci. Q. 722, 723 (2009).

Another amicus points out that veterans of America’s recent wars

suffer from posttraumatic stress syndrome that can lead to felony

convictions, which, in context, should not be considered so infamous as

to lead to lifetime voter disqualification and the resulting stigma. Today’s

decision, of course, provides little comfort to them.

Further, it is not clear exactly what policies are actually advanced

by voter disenfranchisement. As noted in Dillenburg v. Kramer, “[c]ourts

have been hard pressed to define the state interest served by laws

disenfranchising persons convicted of crimes.” 469 F.2d 1222, 1224 (9th

Cir. 1972). Given the lack of a compelling state interest and the

fundamental individual interests involved, the American Bar Association

recommended in 1981 that “[p]ersons convicted of any offense should not

be deprived of the right to vote either by law or by the action or inaction

of government officials.” Andrew L. Shapiro, Challenging Criminal

Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale

L.J. 537, 560 (1993) (quoting ABA Standards for Criminal Justice: Legal

Status of Prisoners 23—8.4, at 145 (2d ed. 1981)). Further, the

American Law Institute’s Model Penal Code states that “a person who is

convicted of a crime shall be disqualified . . . from voting in a primary or

election if and only so long as he is committed under a sentence of

imprisonment.” Model Penal Code § 306.3(1), 10A U.L.A. 751 (2001). 68

The majority opinion leaves a couple avenues of redress for those

seeking to vote after fulfilling their criminal sanctions. Relief through the

exercise of the gubernatorial power is a possibility, but there is no

constitutional requirement that the governor establish an administrative

process for restoring voting rights. Further, all administrative processes

involve burdens of some kind, some slight, others more substantial.

Another avenue of change, of course, is a constitutional amendment.

But for now, the majority opinion endorses a very broad

interpretation of the disqualification provision of article II, section 5 of

the Iowa Constitution that will disqualify thousands of Iowans from

exercising the fundamental right to vote after they have fully satisfied

their criminal sentences, even without a showing of nexus of the crime to

the integrity of the electoral process. The likelihood is that those

convicted of felonies who have fully served their sentences will have their

rights subject to flip-flopping executive orders depending upon the

political philosophy of the executive rather than upon a more stable legal

regime. Sadly, that is exactly what ensnared Griffin into the law’s web

after she completed her criminal sentence.

Wiggins and Hecht, JJ., join this dissent.