Ned Chiodo v. the Section 43.24 Panel Consisting Of: Secretary of State Matthew Schultz, Auditor of State Mary Mosiman and Attorney General Thomas Miller

• Court: Supreme Court of Iowa
• Decided: April 15, 2014
• Docket: 14–0553
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 14–0553

Filed April 15, 2014

NED CHIODO,

Appellant,

vs.

THE SECTION 43.24 PANEL CONSISTING OF: SECRETARY OF STATE MATTHEW SCHULTZ, AUDITOR OF STATE MARY MOSIMAN and ATTORNEY GENERAL THOMAS MILLER,

Appellee,

ANTHONY BISIGNANO,

Intervenor-Appellee.

Appeal from the Iowa District Court for Polk County, David L.

Christensen, Judge.

In an expedited appeal from a ruling on judicial review, the

petitioner challenges the denial of his objection to the intervenor’s

eligibility to seek elective office. AFFIRMED.

Gary D. Dickey Jr. of Dickey & Campbell Law Firm, P.L.C.,

Des Moines, for appellant.

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

General, and Meghan L. Gavin, Assistant Attorney General, for appellees.

Joseph C. Glazebrook of Glazebrook, Moe, Johnston & Hurd, LLP, Des Moines, for intervenor-appellee. 2

Rita Bettis and Randall C. Wilson, Des Moines, for amicus curiae

American Civil Liberties Union of Iowa Foundation, Inc. 3

CADY, Chief Justice.

In this appeal, we must decide if the Iowa Constitution disqualifies

a person who has been convicted of the crime of operating while

intoxicated (OWI), second offense, from holding a public office. The state

elections panel (Panel) found the intervenor in this case was not

disqualified, as did the district court on judicial review of the Panel

decision. On our review of the district court decision, we hold a person

convicted of the crime of OWI, second offense, is not disqualified from

holding a public office in Iowa. We affirm the decision of the district court.

I. Background Facts and Proceedings.

On March 11, 2014, Anthony Bisignano filed an affidavit of

candidacy for Iowa Senate in District 17 with the Iowa Secretary of State.

District 17 covers a portion of Polk County, and Bisignano sought the

Democratic nomination. Two days later, Ned Chiodo filed an objection to

the affidavit of candidacy filed by Bisignano. Chiodo had previously filed

an affidavit of candidacy for Iowa Senate in District 17. He also sought

the Democratic nomination, along with another candidate, Nathan Blake.

Blake is an assistant attorney general in the Iowa Department of Justice.

In the objection, Chiodo claimed Bisignano was disqualified from

holding public office based on his prior conviction of the crime of OWI,

second offense. Chiodo requested the Secretary of State not to place

Bisignano’s name on the primary ballot.

Bisignano was convicted in district court of OWI, second offense,

on December 9, 2013. The district court sentenced him to a term of

incarceration not to exceed two years, but suspended all but seven days of the incarceration and placed him on probation with the Iowa

Department of Correctional Services for two years. 4

The objection filed by Chiodo with the Secretary of State was heard

by the three-person panel on March 19, 2014. On March 21, the Panel

denied the objection.

Chiodo filed a petition for judicial review of the decision of the

Panel with the district court. On April 2, the district court affirmed the

decision of the Panel. Chiodo promptly filed a notice of appeal. We

granted expedited review.

Chiodo raises two issues for review on appeal. First, he argues

Attorney General Thomas Miller was required to recuse himself from considering the objection as a part of the three-person panel due to a

conflict of interest. Second, he claims a criminal conviction for an

aggravated misdemeanor constitutes an infamous crime, which

disqualifies a person with such a conviction from holding office under

article II, section 5 of the Iowa Constitution.

We decline to consider Chiodo’s challenge to the Attorney General’s

participation on the Panel. In oral argument, Chiodo acknowledged he

does not assert this claim to seek a remedy in this case. We thus

proceed only to consider Chiodo’s main contention that the Panel’s ruling

that OWI, second offense, was not an infamous crime was contrary to the

Iowa Constitution.

II. Scope of Review.

The Iowa Code authorizes judicial review of agency decisions that

prejudice the “substantial rights” of the petitioner.1 Iowa Code

1In the district court, the Panel argued the proper avenue for judicial review of its action was writ of certiorari. The district court apparently disagreed, reasoning we would employ the same standards to review a claim brought under either procedural mechanism. The Panel has not appealed this aspect of the district court’s decision, and its resolution is not germane to our determination in this expedited appeal. Accordingly, we assume, without deciding, the Panel and the Attorney General are agencies subject to the provisions of chapter 17A. 5

§ 17A.19(1), (10) (2013); accord Renda v. Iowa Civil Rights Comm’n, 784

N.W.2d 8, 10 (Iowa 2010). Among the grounds upon which a district

court may grant relief is action that is “[u]nconstitutional on its face or

as applied” or action “based upon a provision of law that is

unconstitutional on its face or as applied.” Iowa Code § 17A.19(10)(a).

“[W]e review agency action involving constitutional issues de novo.”

Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 344 (Iowa 2013).

III. Discussion.

The laws of this state provide that a person who seeks public office must be an “eligible elector.” Iowa Code § 39.26. An “eligible elector”

under our law is a person who possesses the qualifications to be a

registered voter. Id. § 39.3(6). The qualifications to vote have roots in

our Iowa Constitution and address concepts of citizenship, age, and

residency. See Iowa Const. art. II, § 1. In short, a person who runs for

public office in Iowa must be a person who can vote in Iowa. Thus,

restrictions on those who run for office are actually restrictions on those

who can vote.

Voting is a fundamental right in Iowa, indeed the nation. See

Devine v. Wonderlich, 268 N.W.2d 620, 623 (Iowa 1978). It occupies an

irreducibly 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. See Wesberry v. Sanders, 376 U.S. 1, 17, 84

S. Ct. 526, 535, 11 L. Ed. 2d 481, 492 (1964). The right to vote is found

at the heart of representative government and is “preservative of other

basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 562, 84

S. Ct. 1362, 1381, 12 L. Ed. 2d 506, 527 (1964); accord Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 1071, 30 L. Ed. 220, 226

(1866). 6

While our constitution underscores the importance and respect for

the voting process that gives voice to democratic governance, it does not

extend that voice to every person. As with all rights, the right to vote is

not absolute. Instead, two classes of people in Iowa are disqualified from

voting. Under article II, section 5, “[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.” Iowa Const. art. II, § 5.

As with many other terms and phrases in our constitution, our

founders did not give us a definition of the phrase “infamous crime.” From the beginning of our constitutional journey as a state, as now, the

courts have been given the role to interpret the constitution and provide

the needed definition so our constitutional principles can be applied to

resolve the disputes we face today. See Varnum v. Brien, 763 N.W.2d

862, 875 (Iowa 2009). Our founders not only declined to list specific

crimes that would disqualify people from participating in the election

process, they did not use traditional classes or categories of crimes such

as felony or misdemeanor to disqualify a voter. Instead, our founders

gave us the phrase “infamous crime.” The foundational question we face

today is whether the crime of OWI, second offense, is an infamous crime.

We do not begin our resolution of this case on a clean slate. We

have considered the meaning of the phrase “infamous crime” in the past

and have given it a rather direct and straightforward definition. We have

said “[a]ny crime punishable by imprisonment in the penitentiary is an

infamous crime.” State ex rel. Dean v. Haubrich, 248 Iowa 978, 980, 83

N.W.2d 451, 452 (1957); accord Blodgett v. Clarke, 177 Iowa 575, 578,

159 N.W. 243, 244 (1916) (per curiam); see also Flannagan v. Jepson, 177 Iowa 393, 399–400, 158 N.W. 641, 643 (1916). 7

If this definition is applied to resolve the question in this case, we

need little additional analysis. Our legislature has defined the crime of

OWI, second offense, as an aggravated misdemeanor. Iowa Code

§ 321J.2(2)(b). An aggravated misdemeanor has been defined by our

legislature to be a crime punishable by imprisonment within our state

correctional system. See id. § 321J.2(4)(a); id. § 901.7. Thus, under our

existing interpretation of the phrase “infamous crime,” a strong argument

exists that Bisignano is disqualified from running for public office, as

well as participating in our democracy as a voter. He claims, however, our prior interpretation of the phrase “infamous crime” is incorrect. The

Panel agreed with this claim, and we now proceed to consider it.

Our judicial process is built on the general principle of

stare decisis. We normally build upon and follow our past cases. Yet,

our experience has revealed times when our precedents must be

overturned. State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014). Within a

system of justice, courts cannot blindly follow the past. Instead, we are

obligated to depart from past cases when they were erroneously decided.

Thus, we turn to review our prior cases that have interpreted the phrase

“infamous crime” to determine if those cases were correctly decided.

We first considered the phrase “infamous crime” outside the

context of article II, section 5. In Flannagan, the defendant continued to

maintain a “liquor nuisance” after the district court entered a decree

enjoining him from doing so. 177 Iowa at 395, 158 N.W. at 641. In

response, the district court held the defendant in contempt of court for

failing to comply with the injunction and sentenced him to one year of

hard labor in the state penitentiary. Id. at 395, 158 N.W. at 641–42. On appeal, we were required to address the procedural rights

afforded under the constitution to a person found in contempt and 8

sentenced to the penitentiary for that contempt. See id. at 398–402, 158

N.W. at 642–44. Because the Iowa Constitution limits the imposition of

involuntary servitude to “punishment of crime,” Iowa Const. art. 1, § 23,

the case turned on whether contempt was a crime. See Flannagan, 177

Iowa at 399, 158 N.W. at 643. To make this determination, we

considered the “infamous crime” phrase found in the Fifth Amendment to

the United States Constitution. See id. at 399–401, 158 N.W. at 643–44.

In turn, we relied heavily on the case of Ex parte Wilson. See id. See

generally Ex parte Wilson, 114 U.S. 417, 422–23, 5 S. Ct. 935, 937–38, 29 L. Ed. 89, 91 (1885).

In Ex parte Wilson, the Court noted that two concepts of infamy

existed prior to the Fifth Amendment. 114 U.S. at 422, 5 S. Ct. at 937,

29 L. Ed. at 91. These two concepts addressed distinct circumstances.

See id. (citing Lord William Eden Auckland, Principles of Penal Law ch.

VII, § 6, at 54 (London 1771)). One concept focused on the mode of

punishment for a person who commits an infamous crime; the other

dealt with disqualification of a person who committed an infamous crime

from being a witness. See id. “[T]he infamy which disqualified a convict

to be a witness depended upon the character of his crime, and not upon

the nature of his punishment.” Id. at 422, 5 S. Ct. at 937–38, 29 L. Ed.

at 91. The list of infamous crimes recognized at the time included

treason, felony, forgery, and crimes injuriously affecting by falsehood and fraud the administration of justice, such as perjury, subornation of perjury, suppression of testimony by bribery, conspiring to accuse one of crime, or to procure the absence of a witness, [but not] . . . private cheats, such as the obtaining of goods by false pretenses, or the uttering of counterfeit coin or forged securities.

Id. at 423, 5 S. Ct. at 938, 29 L. Ed. at 91. Because the latter definition of infamy—pertaining to disqualification—was “already established” at 9

the time the Fifth Amendment was ratified, the Supreme Court reasoned

the Fifth Amendment’s definition must incorporate the infamous-

punishment standard instead. See id. at 422–24, 5 S. Ct. at 937–38, 29

L. Ed. at 91.

We followed the reasoning from Ex Parte Wilson that the right to be

prosecuted by indictment for an “infamous crime” under the Fifth

Amendment applied the concept of “infamous punishment,” not the

particular type or character of the crime. See Flannagan, 177 Iowa at

401, 158 N.W. at 643–44. Quoting Wilson, we said, “ ‘For more than a century, imprisonment at hard labor in the . . . penitentiary . . . has been

considered an infamous punishment in England and America.’ ” Id. at

400, 158 N.W. at 643 (quoting Ex parte Wilson, 114 U.S. at 428, 5 S. Ct.

at 940, 29 L. Ed. at 93). Thus, we held in Flannagan that a person

sentenced to a year of hard labor in the penitentiary was entitled to due

process protections. Id. at 401–02, 158 N.W. at 644. Nevertheless, we

made no effort to define an “infamous crime” under the Iowa Constitution

for purposes of disqualifying persons from voting. We also did not decide

if the punishment concept or the character-of-the-crime concept applied

to the context of voting.

A few months after we decided Flannagan, we decided Blodgett.

Unlike Flannagan, Blodgett did implicate article II, section 5 of our

constitution and required us to decide if forgery (as defined in Iowa Code

section 4853 (Supp. 1913)) was an infamous crime. See Blodgett, 177

Iowa at 578, 159 N.W. at 244. At the time, “the punishment prescribed

by statute for forgery” was “confinement in the penitentiary not more

than ten years.” Id. Our unabridged reasoning regarding the definition of infamous crimes was: “Any crime punishable by imprisonment in the

penitentiary is an infamous crime.” Id. (citing Flannagan, 177 Iowa at 10

400, 158 N. W. at 643). However, we provided no other analysis in

explaining our decision. See id.

Our jurisprudence on infamous crimes following Blodgett sat

dormant until 1957, when we decided Haubrich. In Haubrich, the

defendant had been convicted of income tax evasion under federal law,

and the rights the parties assumed he had lost as a result of that

conviction had been restored by the governor. 248 Iowa at 979–80, 83

N.W.2d at 452. The case turned on two questions: whether a person

loses citizenship upon a federal conviction for what would constitute an infamous crime if convicted under state law and whether the Governor of

Iowa has the power to restore such a person’s rights under Iowa law,

even if there has been no presidential pardon. See id. at 982–87, 83

N.W.2d at 453–56. Identifying the constitutional context of the case,

however, we reiterated the concept articulated in Blodgett and Flannagan

that an infamous crime was punishable by imprisonment in the

penitentiary. See id. at 980, 83 N.W.2d at 452. Thus, we did not

undertake to define “infamous crime,” but only addressed the process

and consequences that follow after a person is convicted of an “infamous

crime.” We merely followed the path first taken forty-one years before

and made no independent analysis.

This background reveals that we have never engaged in a textual

analysis of the meaning of “infamous crime” in article II, section 5. Our

trilogy of cases never examined the specific language of article II, section

5 and its surrounding context. We feel obligated to conduct this analysis

before relying on those cases to resolve this case.

In examining the text of article II, section 5, we observe that the language used by our founders limits disenfranchisement to persons

“convicted of any infamous crime.” Iowa Const. art II, § 5. Under our 11

constitutional interpretation framework, we first look to the words used

by our framers to ascertain intent and the meaning of our constitution

and to the common understanding of those words. Rants v. Vilsack, 684

N.W.2d 193, 199 (Iowa 2004). We recognize, of course, that “words at

best are mere messengers of the thoughts and ideas they are sent to

convey.” Rudd v. Ray, 248 N.W.2d 125, 129 (Iowa 1976). Yet, the

specific constitutional language at issue speaks of a conviction of a

crime, not punishment for a crime. Moreover, our founders knew the

difference between the concepts of conviction and punishment. In prohibiting slavery and involuntary servitude under our constitution, our

founders prohibited involuntary servitude “unless for the punishment of

crime.” Iowa Const. art. I, § 23. Thus, between the two concepts of

infamy discussed in Ex parte Wilson—conviction of a crime or

punishment for a crime—the use of the word “convicted” in the infamous

crime clause reveals our founders intended the concept of “infamous

crime,” in the context of voter disqualification, to be aligned with the

concept of conviction, not punishment. There is simply no textual

support for using punishment to define an “infamous crime.”

It is also instructive that the obvious purpose of article II, section 5

was to declare those classes of persons who would be disqualified to vote.

We seek to interpret our constitution consistent with the object sought to

be obtained at the time of adoption as disclosed by the circumstances.

Redmond v. Ray, 268 N.W.2d 849, 853 (Iowa 1978). It is reasonable to

conclude our founders intended to adopt the concept of infamy

specifically applicable to the disqualification of persons from

participating in various aspects of the democratic process, not the concept of infamy applicable to punishment and procedural rights in

criminal prosecutions. In the context of the limitation of political and 12

civil rights, infamous described the nature of the crime itself, irrespective

of punishment. See Snyder v. King, 958 N.E.2d 764, 773–76 (Ind. 2011)

(reviewing the historical backdrop of its infamous crimes clause and

concluding “[h]istory thus demonstrates that whether a crime is

infamous . . . depends . . . on the nature of the crime itself”).

It is also important to observe that the previous binary nature of

punishment in Iowa has given way to a more complex and nuanced

continuum of punishment. At the time of our constitutional convention,

only two classifications of crimes existed—felonies and misdemeanors. Felons were sent to prison; misdemeanants were sent to jail. See Iowa

Code § 2816 (1851) (“Public offenses are divided into felonies and

misdemeanors.”); id. § 2817 (“A felony is an offense punishable with

death, or by imprisonment in the penitentiary of this state.”); id. § 2818

(“Every other criminal offense is a misdemeanor.”). Aggravated

misdemeanors did not exist in 1857 when our current constitution was

drafted, see id. §§ 2816–18, nor did they exist in 1916 when we decided

Blodgett and Flannagan, see Iowa Code §§ 8533–36, 8538 (1919); see

also Bopp v. Clark, 165 Iowa 697, 701, 147 N.W. 172, 174 (1914). The

drafters of our constitution easily could have chosen to disqualify those

convicted of crimes “punishable by imprisonment in the penitentiary; the

drafters of Oregon’s constitution certainly did. See Oregon Const. art. II,

§ 3 (“The privilege of an elector, upon conviction of any crime which is

punishable by imprisonment in the penitentiary, shall be forfeited, unless

otherwise provided by law.” (Emphasis added.)). But, our drafters did

not.

We conclude Blodgett was clearly erroneous and now overrule it. We also disapprove of any suggestion in Flannagan or Haubrich that the

mere fact that a crime is punishable by confinement in a penitentiary 13

disqualifies the offender from exercising the privilege of an elector.

Consequently, Chiodo’s position quickly unravels from the threads of the

three cases from which it was spun. Yet, we must still decide the

underlying question whether the crime of OWI, second offense, is an

infamous crime. Our constitution is supreme, Iowa Const. art. XII, § 1,

and if OWI, second offense, is an infamous crime, Bisignano is

disqualified from office under our constitution.

We begin our search for the meaning of the phrase “infamous

crime” by observing that our legislature defined “infamous crime” in 1994 to mean “a felony as defined in section 701.7 or an offense classified as a

felony under federal law.” See 1994 Iowa Acts ch. 1180, § 1 (codified at

Iowa Code § 39.3(8) (1995)). While the legislature may help provide

meaning to the constitution by defining undefined words and phrases,

the definition provided by our legislature itself must be constitutional.

See Junkins v. Branstad, 421 N.W.2d 130, 134–35 (Iowa 1988) (noting

the importance of a legislative definition of “appropriation bill,” but

recognizing “it does not settle the constitutional question”); cf. Powell v.

McCormack, 395 U.S. 486, 549, 89 S. Ct. 1944, 1978, 23 L. Ed. 2d 491,

532 (1969) (“Our system of government requires that federal courts on

occasion interpret the Constitution in a manner at variance with the

construction given the document by another branch.”). The legislature

may not add to or subtract from the voter qualifications under the

constitution. See Coggeshall v. City of Des Moines, 138 Iowa 730, 737,

117 N.W. 309, 311 (1908). In the end, it is for the courts to interpret the

constitution. See Varnum, 763 N.W.2d at 875. This important principle

has, more than any other, helped allow our democracy to advance with each passing generation with our constitutional beliefs intact. 14

The felony–misdemeanor distinction does offer a clean bright-line

rule. The benefits of such a rule are obvious, and the allure is tempting.

Yet, our role is to interpret our constitution by using the language found

in the constitution. We perform this role with the presumption that the

drafters of our constitution were careful and thoughtful in selecting each

word to convey the meaning they intended would be carried forward. If

the words of the constitution do not support a bright-line rule, neither

can we. Additionally, we recognize that we are dealing with a

constitutional provision that disqualifies persons from voting. Ease of application does not justify a rule that disenfranchises otherwise eligible

voters.2

A review of article II of our constitution reveals the framers clearly

understood that an “infamous crime” and a “felony” had different

meanings. Most immediately, article II disqualifies an elector once

convicted of an infamous crime. Iowa Const. art. II, § 5. Yet, in the same

article, electors “in all cases except treason, felony, or breach of the

peace” are privileged from being arrested “on the days of election, during

their attendance at such election, [and] going to and returning

therefrom.” Id. art. II, § 2 (emphasis added). If the drafters intended the

2The real and substantial political equality we enjoy, and to which we all endeavor, owes in no small part to the universal suffrage among adult citizens. Denying the right to vote is a privation of our highest ideals as a society: Denying the right to vote to people who are living and working in the community runs counter to the modern ideal of universal suffrage. Under that ideal, each citizen is entitled to cast one vote, and each vote counts the same regardless of who casts it. Voting thus becomes a powerful symbol of political equality; full citizenship and full equality mean having the right to vote. Erika Wood, Brennan Center for Justice, Restoring the Right to Vote 4 (2009), available at http://www.BrennanCenter.org/Publication/Restoring-Right-Vote+ (last visited Apr. 15, 2014). 15

two concepts to be coextensive, different words would not have been

used. This reading is bolstered by article III, section 11, which privileges

members of the legislature from arrest during the session of the general

assembly, or going to and returning from session “in all cases, except

treason, felony, or breach of the peace.” Id. art. III, § 11 (emphasis

added). Our framers knew the meaning of felony and knew how to use

the term. See In re Johnson, 257 N.W.2d 47, 50 (Iowa 1977) (“It is our

duty, if fairly possible, to harmonize constitutional provisions.”). As with

our reasoning dispensing with the infamous-punishment test, if our founders intended the infamous crimes clause to mean all felony crimes,

we must presume they would have used the word “felony” instead of the

phrase “infamous crime.” Cf. Snyder, 958 N.E.2d at 771 (“[I]f the framers

had intended the Infamous Crimes Clause to apply only to felonies, we

presume they would have used the term ‘felony’ instead of ‘infamous

crime.’ ”). Accordingly, the legislature’s decision to define an “infamous

crime” as a “felony” cannot stand alone to define the constitutional

meaning of “infamous crime” because the two terms unquestionably have

different meanings.

This analysis does not mean the legislative definition of “infamous

crime” is not helpful in deciding the definition under article II, section 5.

Cf. State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009) (“Legislative

judgments are generally regarded as the most reliable objective

indicators of community standards . . . .”). In fact, given the long-

standing awareness of the possible interplay between aggravated

misdemeanors and our holding in Blodgett that crimes punishable by

confinement in a penitentiary are “infamous crimes,” Iowa Code section 39.3(8) (2013) may represent an evolution in our shared understanding

of the gravity of crimes that should subject an offender to 16

disenfranchisement. Cf. Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590,

598, 2 L. Ed. 2d 630, 642 (1958) (looking to “the evolving standards of

decency that mark the progress of a maturing society”); Ex parte Wilson,

114 U.S. at 427, 5 S. Ct. at 940, 29 L. Ed. at 93 (“What punishments

shall be considered as infamous may be affected by the changes of public

opinion from one age to another.”). Thus, we acknowledge the legislative

definition as a factor and turn to consider the meaning of the phrase

“infamous crime” under article II, section 5.

The meaning of the word “infamous” in the mid-nineteenth century was “ ‘most vile; base; detestable.’ ” Snyder, 958 N.E.2d at 780 (quoting

Noah Webster, A Dictionary of the English Language 202 (rev. ed. 1850)).

It captures a concept dating back more than 2000 years to ancient

Greece, when “criminals who had committed certain heinous crimes were

pronounced ‘infamous’ and thereafter ‘prohibited from appearing in

court, voting, making speeches, attending assemblies, and serving in the

army’ and thus prohibited from influencing public affairs.” Id. at 773

(quoting Walter Matthews Grant, et al., Special Project: The Collateral

Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 941

(1970)).

In 1839, the territorial legislature adopted a statute that declared

certain persons to be “infamous.” Additionally, the statute specifically

applied to voting. It stated:

Each and every person in this Territory who may hereafter be convicted of the crime of rape, kidnapping, wilful [sic] and corrupt perjury, arson, burglary, robbery, sodomy, or the crime against nature, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust, or profit, of voting at any election, of serving as a juror, and of giving testimony in this Territory. 17

The Statute Laws of the Territory of Iowa, Code of Criminal

Jurisprudence, Tenth Div., § 109, at 182 (1839). The 1839 statute

provides us with a limited window into some specific understanding of

the meaning of “infamous crime[s]” of the day.

Of course, like Iowa Code section 39.3(8) (2013) today,3 this statute

is not a constitutional test. See Snyder, 958 N.E.2d at 780 (concluding

an 1843 Indiana statute enumerating nine infamous crimes was not a

present-day constitutional test); see also Green v. City of Cascade, 231

N.W.2d 882, 890 (Iowa 1975) (recognizing that while we give “respectful consideration to the legislature’s understanding of constitutional

language,” we are the final arbiter of the meaning of the Iowa

Constitution). Moreover, the judgment captured by the statute in 1839

preceded our constitutional convention by nearly a generation, and it

was repealed before 1851.

More directly, it appears the drafters at our 1857 constitutional

convention intended to deprive the legislature of the power to define

infamous crimes. The proposed 1844 Iowa Constitution had contained a

provision denying the privileges of an elector to “persons declared

infamous by act of the legislature.” Iowa Const. art. III, § 5 (1844)

(emphasis added). This language was removed in the 1846 Iowa

Constitution. See Iowa Const. art. III, § 5 (1846) (“No idiot, or insane

3We recognize article II, section 5 was amended by Iowa voters in 2008.

However, there is a reason none of the parties argued the amendment gave new meaning to the infamous crimes clause. Without any question, the amendment was technical and intended only to update descriptions of mentally incompetent persons we no longer use. There was no intention to update the substantive meaning of the infamous crimes clause, and the companion judicial interpretations accordingly continued in force unaffected by the amendment. In short, the amendment did nothing but what it was intended to do: replace offensive descriptions of people with new descriptions. Thus, we properly refrain from considering the amendment in our analysis. 18

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

the privileges of an elector.”). While the 1846 constitution was modeled

on the 1844 constitution, historical commentary regarding 1846

convention reveals radically egalitarian and inclusive voices influenced

the debate over our incipient fundamental law: “[A] strong effort [was]

made to extend this political right to resident foreigners who had

declared their intention of becoming citizens.” Benjamin F. Shambaugh,

History of the Constitutions of Iowa 301 (1902). This suggests its

infamous crimes clause was meant to apply narrowly. The drafters at the 1857 constitutional convention did not reinsert

the 1844 language. Certainly, the drafters at our 1857 constitutional

convention knew how to delegate authority over elections to the

legislature. Indeed, the Indiana constitutional conventions of 1816 and

1850 gave its general assembly authority to define infamous crimes.

Snyder, 958 N.E.2d at 774–75; see also Indiana Const. art. II, § 8 (“The

General Assembly shall have power to deprive of the right of suffrage,

and to render ineligible, any person convicted of an infamous crime.”).

Our founders were aware of the 1851 Indiana Constitution, but clearly

did not choose to adopt its language for article II, section 5.

As recognized by other courts, infamous crimes clauses found in

many state constitutional voting provisions are properly understood as a

regulatory measure, not a punitive measure. See Snyder, 958 N.E.2d at

781. Article II of the Iowa Constitution appears compatible with this

approach. Our framers devoted the entire article to voting. Article II

establishes the requirements to exercise the right to vote, Iowa Const.

art. II, § 1; provides safeguards to the exercise of the right to vote, id. art. II, §§ 2–3; and lists two classes of individuals not granted the right to

vote, id. art. II, § 5. The overall approach reveals our framers not only 19

understood the importance for Iowans to have a voice in our democracy

through voting, but they further understood the fundamental need to

preserve the integrity of the process of voting by making sure it was not

compromised by voices that were incompetent to meaningfully

participate or voices infected by an infamous disposition. See Snyder,

958 N.E.2d at 781 (“The most common regulatory justification for

criminal disenfranchisement provisions is that they preserve the integrity

of elections.”).

Within this context and setting, 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.’ ” Snyder, 958

N.E.2d at 781 (quoting Washington v. State, 75 Ala. 582, 585 (1884)); see

also Otsuka v. Hite, 414 P.2d 412, 417 (Cal. 1966) (adopting the

justification), abrogated on other grounds by Ramirez v. Brown, 507 P.2d

1345, 1353 (Cal. 1973) (en banc), judgment rev’d by Richardson v.

Ramirez, 418 U.S. 24, 56, 94 S. Ct. 2655, 2672, 41 L. Ed. 2d 551, 572

(1974). 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” under article II, section 5 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. See Redmond, 268 N.W.2d at 863. 20

Any definition of the phrase “infamous crime” has vast implications

and is not easy to articulate. However, we have said regulatory measures

abridging the right to vote “must be carefully and meticulously

scrutinized.” Devine, 268 N.W.2d at 623. Similarly, the Supreme Court

has said measures limiting the franchise must be “ ‘necessary to promote

a compelling governmental interest.’ ” Dunn v. Blumstein, 405 U.S. 330,

343, 92 S. Ct. 995, 1003, 31 L. Ed. 2d 274, 884 (1972) (quoting Shapiro

v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600,

615 (1969)). This context helps frame both the governmental interest at stake in protecting the integrity of the electoral process and the

individual’s vital interest in participating meaningfully in their

government. The definition of “infamous crime” turns on the relationship

particular crimes bear to this compelling interest.

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.” Snyder, 958 N.E.2d at 782; see also Otsuka, 414 P.2d at 422

(“[T]he inquiry must focus more precisely on the nature of the crime

itself, and determine whether the elements of the crime are such that he

who has committed it may reasonably be deemed to constitute a threat

to the integrity of the elective process.”). 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.”

Commonwealth ex rel. Baldwin v. Richard, 751 A.2d 647, 653 (Pa. 2000).

Still other courts establish the standard at crimes marked by “great moral turpitude.” Washington, 75 Ala. at 585. 21

Considering the crime at the center of this case, we need not

conclusively articulate a precise definition of “infamous crime” at this

time. We only conclude that the crime must be classified as particularly

serious, and it must be a crime that reveals that voters who commit the

crime would tend to undermine the process of democratic governance

through elections. We can decide this case by using the first part of this

nascent definition.

Throughout our history, we have separated the seriousness of

crimes by felony and misdemeanor designations. Crimes classified as felonies are serious offenses and misdemeanors are less serious. Within

this framework, “infamous crime[s],” in light of its meaning throughout

history, would at most extend to the area of serious crimes occupied by

felonies. The concept of infamous crime is inconsistent with the concept

of misdemeanor crime. It conveys a societal judgment not present in a

misdemeanor, especially as it relates to the concept of

disenfranchisement. Even if a misdemeanor crime could theoretically

include a crime with a nexus to the voting process, see, e.g., Iowa Code

§ 39A.3 (describing election misconduct in the second degree and making

it an aggravated misdemeanor), the nexus would be too tenuous to

support disenfranchisement if considered only a misdemeanor. Thus, an

infamous crime first must be a crime classified as a felony. As a

misdemeanor crime, OWI, second offense, is not an “infamous crime”

under article II, section 5.

It will be prudent for us to develop a more precise test that

distinguishes between felony crimes and infamous crimes within the

regulatory purposes of article II, section 5 when the facts of the case provide us with the ability and perspective to better understand the

needed contours of the test. This case does not. OWI, second offense, is 22

a crime that has never been considered by our legislature to be an

infamous crime. It is not aligned in any way with those crimes

designated by the legislature in 1839 as infamous. It is viewed by our

legislature as a misdemeanor crime.4 It is a crime that does not require

specific criminal intent and lacks a nexus to preserving the integrity of

the election process.

Our conclusion that OWI, second offense, is not an infamous crime

does not minimize its seriousness, or the seriousness of any other

misdemeanor, but recognizes our framers sought only to limit the types of crimes that should disqualify a person from voting, and that limit was

drawn at “infamous crime[s].” A crime that was not serious enough to be

a felony a fortiori was not intended by our founding drafters to be an

“infamous crime.”

Our decision today is limited. It does not render the legislative

definition of an “infamous crime” under Iowa Code section 39.3(8)

unconstitutional. We only hold OWI, second offense, is not an “infamous

crime” under article II, section 5, and leave it for future cases to decide

which felonies might fall within the meaning of “infamous crime[s]” that

disqualify Iowans from voting.

IV. Conclusion.

We consider and reject all other claims and arguments asserted by

Chiodo. The crime of OWI, second offense, is not an infamous crime

under article II, section 5 of the Iowa Constitution. The decision of the

4Although an aggravated misdemeanor, it offers a special minimum sentence of local imprisonment of seven days, Iowa Code § 321J.2(4)(a), making it even less serious than other aggravated misdemeanors. Cf. id. § 903.1(2) (providing a maximum term of imprisonment for aggravated misdemeanors when “a specific penalty is not provided”). 23

district court is affirmed. Anthony Bisignano’s name may appear on the

ballot.

AFFIRMED.

All justices concur except Mansfield and Waterman, JJ., who

concur specially; Wiggins, J., who dissents; and Appel, J., who takes no

part. 24

#14–0553, Chiodo v. The Section 43.24 Panel

MANSFIELD, J. (specially concurring).

While I agree that Anthony Bisignano should not be disqualified

from running for state senate, I cannot join the plurality opinion. I agree

with the Panel, the district court, and Iowa’s elected representatives that

felonies and only felonies are “infamous crimes” under article II, section

5 of the Iowa Constitution.

As the dissent correctly points out, the plurality throws out nearly

a hundred years of this court’s precedents. Yet what is its replacement? That is hard to tell. Lacking a sound conceptual floor for its opinion, or a

clear test, I think the plurality has unnecessarily introduced uncertainty

and invited future litigation over voting rights. For example, I anticipate

we will now see right-to-vote lawsuits from current prison inmates.

The plurality’s assertion that its decision is “limited” does not

make it so. Let’s review the plurality’s standards, which it admits are

“nascent.” The plurality says that only felonies falling within “the

regulatory purposes of article II, section 5” disqualify a person from

voting. The plurality also says that only “particularly serious” crimes

that “tend to undermine the process of democratic governance through

elections” disqualify a person from voting. The plurality adds, “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.”5

5The plurality sows additional confusion by citing Dunn v. Blumstein, 405 U.S. 330, 342, 92 S. Ct. 995, 1003, 31 L. Ed. 2d 274, 284 (1972), and suggesting that a “compelling governmental interest” must support any disenfranchisement of a voter convicted of a crime. The plurality ignores the fact that two years after Dunn, the United States Supreme Court rejected the view that felon disenfranchisement must be supported by a compelling state interest, noting that the Fourteenth Amendment expressly contemplates the disenfranchisement of voters convicted of a crime. See 25

I think most people would agree these unrefined standards

basically offer no guidance at all, therefore leaving the door wide open for

future litigation. Notably, Iowa’s constitution, and the plurality opinion

make no distinction between convicted felons who are presently

incarcerated and those who have served their time. Thus, under the

plurality’s approach, even a person who is presently serving a lifetime-

without-parole-sentence can argue that he or she should be able to vote

from prison because barring him or her from voting would “undermine

the process of democratic governance through elections.” When we overrule precedent that established a definite rule, we owe the public

more than a welcome mat for future lawsuits.

The plurality’s approach to whether a crime is “infamous” is an

odd mix of half-hearted originalism and excessive fealty to a court

decision from Indiana. Initially, the plurality draws on mid-nineteenth

century sources to ascertain the meaning of “infamous.” According to

this review, “infamous crime” does not mean “felony” nor is it based on

the punishment for the crime. Rather, it is based on how bad the crime

is. Thus, “infamous” seems to mean something like “heinous” according

to this part of the plurality opinion. Accordingly, the plurality quotes an

1839 Iowa territorial law listing infamous crimes that disqualify a person

from voting. The Statute Laws of the Territory of Iowa, Code of Criminal

Jurisprudence, Tenth Div., § 109, at 182 (1839). Actually, this list

___________________________ Richardson v. Ramirez, 418 U.S. 24, 54–55, 94 S. Ct. 2655, 2670–71, 41 L. Ed. 2d 551, 570–71 (1974); see also Madison v. State, 163 P.3d 757, 767–68 (Wash. 2007) (reviewing the caselaw that holds the right to vote is not fundamental for convicted felons). 26

appears to include most felonies.6 I would argue that this list, if

anything, supports either of two viewpoints: (1) “infamous crime” was up

to the legislature to define, or (2) “infamous crime” meant felony.

The plurality then shifts gears and moves on to out-of-state

precedent, primarily a 2011 decision of the Indiana Supreme Court. See

Snyder v. King, 958 N.E.2d 764 (Ind. 2011). That decision interpreted

article II, section 8 of the Indiana Constitution, which provides, “ ‘The

General Assembly shall have the power to deprive the right of suffrage,

and to render ineligible, any person convicted of an infamous crime.’ ” Id. at 768 & n.1 (quoting Ind. Const. art. II, § 8). In its opinion, the

Indiana court, like the plurality here, began with a review of historical

sources. Id. at 773–80.

However, toward the end of its opinion the Indiana Supreme Court

largely turned away from historical analysis. Instead, it decided that

article II, section 8 of the Indiana Constitution serves only a “regulatory”

purpose and that it can apply only to crimes like “treason, perjury,

malicious prosecution, and election fraud,” where the person who

committed the crime “may be presumed to pose a bona fide risk to the

integrity of elections.” Id. at 781–82. In justifying this rather stark

change in direction, the court relied on another clause of the Indiana

Constitution as well as the placement of article II, section 8 within article

II. Id. at 781. As the court explained,

[T]he Infamous Crimes Clause was not intended to be used primarily as a retributive or deterrent mechanism of punishment. It is a cardinal principle of constitutional interpretation that our Constitution should be interpreted as

6Murder is not in the list, but at that time murder was punishable by death, which made voting rights a moot point. See The Statute Laws of the Territory of Iowa, Code of Criminal Jurisprudence, First Div., § 2, at 150. 27 a whole. Article I, § 18, of the Constitution provides that “[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice.” Ind. Const. art. I, § 18. Interpreting the Infamous Crimes Clause as authorizing the General Assembly to use a particular punishment solely for the purpose of exacting vindictive justice would conflict with this provision of the Indiana Bill of Rights. And we will avoid reading such a conflict into the Constitution unless the document itself clearly requires us to do so.

We think instead that the Infamous Crimes Clause is properly understood primarily as a regulatory measure. While history clearly demonstrates its punitive characteristics, its primarily regulatory character is clearly demonstrated by its placement in Article II, which seeks to regulate suffrage and elections, and the justification underlying criminal disenfranchisement provisions generally. Id. (citation omitted).

My colleagues here largely track Snyder but back off from fully

embracing it. Thus, the plurality does not reach Snyder’s ultimate

conclusion that violent serious felonies like murder and kidnapping

cannot disqualify a person from voting. But the plurality’s quasi-Snyder

jurisprudence has multiple problems as applied to Iowa.

First, Iowa’s situation is different from Indiana’s. Among other

things, Iowa does not have a constitutional provision requiring that

punishment be “founded on the principles of reformation.” Ind. Const.

art. I, § 18. Also, as I discuss below, Iowa amended and reenacted its

constitutional clause disenfranchising persons convicted of infamous

crimes in 2008. Importing an Indiana decision into Iowa is flawed on

this ground alone.

In addition, I think some of Snyder’s premises are questionable.

For example, I do not place much stock in the “placement” of article II,

section 8 within the Indiana Constitution. Nor do I place much stock in the placement of article II, section 5 within the Iowa Constitution. These

are the parts of those constitutions that relate to voting. Where else 28

would you include a clause that authorizes denial of the vote to persons

convicted of crimes? So I think it is a stretch to say that because these

provisions appear in their respective constitutions under “suffrage,” we

have to interpret them narrowly.

Third, Snyder at least deals with the question of whether people in

prison can vote even if their crime is not infamous. Thus, Snyder

concludes that the state can use its “police power” to deny a convicted

person the right to vote during the term of imprisonment regardless of

the crime committed. Snyder, 958 N.E.2d at 784–85. But Snyder cites no textual basis for this conclusion in the Indiana Constitution. Id.

Instead, Snyder relies on out-of-state cases, national “consensus,” and

the historical practice in Indiana. Id. Regardless of the merits of

Snyder’s reasoning, the opinion at least has the virtue of clarifying that

current inmates will not be able to vote. The plurality opinion here

leaves that highly important question unanswered.

Finally, whatever its flaws, Snyder does establish a somewhat clear

rule of law. Current prisoners cannot vote, whereas released prisoners

can vote unless their crime was akin to “treason, perjury, malicious

prosecution, and election fraud.” Id. at 782, 785. My colleagues’

opinion, by going only partway on Snyder, does not pass that clarity

threshold and instead fosters uncertainty.

I would grant that the plurality has done a good job of saying what

the legal standard for disqualification isn’t. It is not conviction of a

felony, conviction of a misdemeanor, or conviction of a crime with the

potential for incarceration in a penitentiary. However, other than the

indeterminate language I’ve quoted above, the plurality offers no further guidance as to what the standard is. As I have already argued, this 29

standard is essentially no standard at all and will lead to more voting

and ballot cases as we sort out the implications of today’s ruling.

Having voiced my criticisms of the plurality, let me now explain

how I would decide this case. As I discuss below, I think there are ample

grounds for holding that our constitution, in its current form, disqualifies

felons and only felons from voting and holding public office.

Our constitution gives the right to vote to all citizens, Iowa Const.

art. II, § 1, subject to the following exception: “[A] person convicted of any

infamous crime shall not be entitled to the privilege of an elector.” Id. art. II, § 5. Although article II, section 5 was amended and reenacted by

the general assembly and the people of Iowa a few years ago, the

prohibition on voting by persons convicted of infamous crimes dates

back to our original constitutional history. Thus, our 1857 constitution

contained this language, which it borrowed essentially verbatim from the

1846 constitution. Compare Iowa Const. art. II, § 5 (1857), with Iowa

Const. art. II, § 5 (1846).

I agree with the plurality on two points it makes about the text of

article II, section 5. First, “infamous” is rather vague language. It does

not cry out with specificity. Second, our framers’ use of the word

“infamous” and especially the phrase “infamous crime” suggest that our

interpretive focus should be on the category of crime, not the type of

punishment.

However, I think some additional lessons can be extracted from

our early constitutional history. I have already mentioned the 1839

territorial legislation that more or less equates “infamous crime” for

purposes of denying voting privileges with felony. See The Statute Laws of the Territory of Iowa, Code of Criminal Jurisprudence, Tenth Div.,

§ 109, at 182; see also Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 30

2012) (indicating that in construing a provision of the Iowa Constitution,

“our mission ‘ “is to ascertain the intent of the framers” ’ ” (quoting Rants

v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004))). Hence, I remain

unpersuaded that “infamous crime” as used in article II, section 5 could

not mean the same thing as felony, at least if the legislature made that

choice. The plurality reaches its conclusion based exclusively on the

following syllogism:

(1) Article II, section 2 of the Iowa Constitution provides that electors “shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election” and article III, section 11 provides that senators and representative “in all cases, except treason, felony, or breach of the peace, shall be privileged from arrest during the session of the General Assembly.”

(2) Because the word “felony” is used in these other provisions of our constitution, and “infamous crime” is used in article II, section 5, infamous crime cannot mean the same thing as felony.

This strikes me as a relatively weak argument. The obvious point

it ignores is that the language in article II, section 2 and article III,

section 11 is a direct borrowing from Article I, Section 6 of the United

States Constitution.7 Given the specific source of these two provisions, I

do not think we can use them as a lexicon for interpreting the rest of the Iowa Constitution. And by the way, does this mean that treason is not a

felony?

7Article I, Section 6 of the United States Constitution states,

The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same . . . .

U.S. Const. art. I, § 6. 31

As noted by my colleagues, there has been considerable water

under the bridge since 1857. In 1916, we declared that any crime

punishable by imprisonment in the penitentiary was an infamous crime

for purposes of article II, section 5. See Blodgett v. Clarke, 177 Iowa 575,

578, 159 N.W. 243, 244 (1916) (per curiam). We reiterated that

interpretation in 1957. See State ex rel. Dean v. Haubrich, 248 Iowa 978,

980, 83 N.W.2d 451, 452 (1957). However, when those cases were

decided, “felony” and “crime punishable by imprisonment in the

penitentiary” were synonymous. See Iowa Code §§ 5093–5094 (1897); id. §§ 687.2, .4 (1954). There was no such thing as an aggravated

misdemeanor punishable by imprisonment in the penitentiary. Thus,

like the Panel and the district court, I do not regard those precedents as

controlling on whether a nonfelony that was potentially punishable by

imprisonment in the penitentiary would disqualify a person from voting.

Those cases do effectively hold that felons cannot vote or hold elective

office under the Iowa Constitution. And for that proposition, I think they

remain good law.

Furthermore, in 1994, the legislature enacted the current law that

specifically defines “infamous crime” for voting and elective office

purposes to mean a felony. See 1994 Iowa Acts ch. 1180, § 1 (codified at

Iowa Code § 39.3(8) (1995)). This takes on particular significance, in my

view, because our general assembly, in 2006 and 2007, and the voters of

our state, in 2008, repealed the existing article II, section 5 and approved

a new version. See 2006 Iowa Acts ch. 1188, § 1; 2007 Iowa Acts ch.

223, § 1.

The previous version of article II, section 5, dating back to 1857, read, “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, 32

§ 5 (1857). The new version reads, “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.” Iowa Const. art. II, § 5

(amended 2008).

It is clear that the legislature’s specific purpose in 2006 and 2007

was to remove offensive and outdated language from article II, section 5.

However, the legislature knew it was keeping in place the prohibition on

voting by those convicted of infamous crimes and knew that its own laws

at that time defined infamous crime as a felony. See Iowa Code § 39.3(8) (2007). It would be absurd to suggest the legislature intended to approve

a constitutional amendment that struck down its own law—Iowa Code

section 39.3(8). Therefore, when the legislature twice voted to repeal and

replace the existing article II, section 5 with a new version, I believe it

ratified its own existing interpretation of that provision under which

infamous crime meant a felony.

We have long adhered to this principle as it applies to statutory

amendments. “When the legislature amends some parts of a statute

following a recent interpretation, but leaves others intact, this ‘may

indicate approval of interpretations pertaining to the unchanged and

unaffected parts of the law.’ ” State v. Sanford, 814 N.W.2d 611, 619

(Iowa 2012) (quoting 2B Norman J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction § 49:10, at 144 (7th ed. 2008)); see

also Jenney v. Iowa Dist. Ct., 456 N.W.2d 921, 923 (Iowa 1990); State ex

rel. Iowa Dep’t of Health v. Van Wyk, 320 N.W.2d 599, 604 (Iowa 1982).

Logic dictates that this rule should apply equally to constitutional

amendments. A decision of the Kansas Supreme Court illustrates this principle.

See In re Cent. Ill. Pub. Servs. Co., 78 P.3d 419 (Kan. 2003). In that case, 33

several companies that distributed and sold natural gas, but not in

Kansas, argued they were entitled to a constitutional tax exemption for

their inventory of gas stored in Kansas. Id. at 422. However, under a

1992 amendment to the relevant section of the Kansas Constitution,

merchants’ inventory for public utilities was denied an exemption. Id. at

424. Yet, Kansas law as of 1992 limited the statutory definition of

“public utility” to companies that were engaged in transporting or

distributing natural gas to, from, or within the state of Kansas, or that

were engaged in storing natural gas in an underground formation in Kansas. Id. at 424–25. In concluding that this narrow statutory

definition should apply, the court indicated among other things that the

constitutional amendment should be construed consistently with “the

statutes in existence at the time the . . . amendment was proposed and

adopted.” Id. at 426. Here too, where article II, section 5 was repealed

and reenacted in 2006–2008, I believe the term “infamous crime” should

be construed consistent with the statute in existence at that time, Iowa

Code § 39.3(8). See also Cal. Motor Express v. State Bd. of Equalization,

283 P.2d 1063, 1065 (Cal. Ct. App. 1955) (finding that reenactment of a

constitutional provision “which has a meaning well established by

administrative construction is persuasive that the intent was to continue

the same construction previously recognized and applied”); Wakem v.

Inhabitants of Town of Van Buren, 15 A.2d 873, 875–76 (Me. 1940) (“It is

a general rule that a reenactment, in substantially the same language, of

a constitutional provision which had been previously construed and

explained by the court, carries with it the same meaning previously

attributed by the court to the earlier provision, in the absence of anything to indicate that a different meaning was intended.”); Bodie v.

Pollock, 195 N.W. 457, 458 (Neb. 1923) (“It is well settled in many, if not 34

most, of the jurisdictions of the country that, where a construction of

constitutional provisions has been adopted and a constitutional

convention thereafter re-enacts such provisions, it re-enacts not only the

language of the provisions but the construction which has attached to

the same.”).

It was also no secret that Iowa law forbid voting by convicted felons

when the proposed amendment went before the public at the 2008

general election. For example, a contemporary editorial in Iowa’s largest

newspaper said the following about the proposed revision of article II, section 5,

It is worth thinking about whether an amendment belongs in the Constitution at all denying the vote to anyone based on diminished mental capacity, which is a relative thing. Also, in this section, the right to vote is denied to convicted felons, even those who have served their sentences, which is wrong. But those are questions for another day. For now, the language of the Iowa Constitution should be devoid of language that is seen as belittling. See Editorial, Change Harsh Wording in State Constitution, Des Moines

Register, October 31, 2008, at A14.

Personally, I agree with this editorial. I believe that convicted

felons who have served their sentence and paid their debt to society

ought to be able to vote, without requiring dispensation from the

governor. By permanently disenfranchising convicted felons, Iowa puts

itself in a small minority of three states. But my personal views do not

carry weight when it comes to interpreting the Iowa Constitution.

Because the Iowa Constitution forbids convicted felons but not

convicted misdemeanants from voting, I concur in the result in this case.

Waterman, J., joins this special concurrence. 35

#103/14–0553, Chiodo v. The Section 43.24 Panel

WIGGINS, Justice (dissenting).

I respectfully dissent. The plurality is rewriting nearly one

hundred years of caselaw. I do not think we should do so at this time.

Our constitution sets the qualifications of electors as follows:

Every citizen of the United States of the age of twenty-one years,8 who shall have been a resident of this state for such period of time as shall be provided by law and of the county in which he claims his vote for such period of time as shall be provided by law, shall be entitled to vote at all elections which are now or hereafter may be authorized by law. The general assembly may provide by law for different periods of residence in order to vote for various officers or in order to vote in various elections. The required periods of residence shall not exceed six months in this state and sixty days in the county.

Iowa Const. art. II, § 1.

After giving certain persons the right to vote, the constitution

disqualifies certain persons from voting. Id. art. II, § 5. It provides “a

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

privilege of an elector.” Id.

We have consistently defined “infamous crime” under our constitution as a crime for which the legislature fixed the maximum

punishment as confinement in prison. State ex rel. Dean v. Haubrich,

248 Iowa 978, 980, 83 N.W.2d 451, 452 (1957); Blodgett v. Clarke, 177

Iowa 575, 578, 159 N.W. 243, 244 (1916) (per curiam); Flannagan v.

Jepson, 177 Iowa 393, 400, 158 N.W. 641, 643 (1916). When the

legislature adopted the legislative scheme to have three classes of

misdemeanors in Iowa Code section 701.8, see 1976 Iowa Acts ch. 1245,

8Amendment XXVI to the United States Constitution lowered the voting age

applicable to the states to eighteen years of age. U.S. Const. amend. XXVI. 36

§ 108 (codified at Iowa Code § 701.8 (1979)), it knew the constitutional

definition of “infamous crime” was any crime for which the legislature

fixed the maximum punishment as confinement in prison. Thus, by

conscious choice, the legislature made an aggravated misdemeanor an

infamous crime.

Eliminating our bright-line rule is not only unnecessary, but also

dangerous. Now, we can no longer look to the crime’s penalty to

determine who can vote and who cannot vote. Rather, we now apply

certain factors to make that determination. The plurality’s approach does little to settle the law. I say this for a number of reasons.

First, I agree with the plurality that the legislature cannot write a

constitutional definition of “infamous crime” by its enactment of Iowa

Code section 39.3(8) (2013).9 The legislature cannot disqualify a voter by

defining “infamous crime” under our constitutional scheme because the

constitution defines who is and who is not an eligible elector. See

Coggeshall v. City of Des Moines, 138 Iowa 730, 744, 117 N.W. 309, 314

(1908) (invalidating an election where the City of Des Moines did not

allow women to vote). However, the plurality implies section 39.3(8) is a

factor we should consider to determine if a crime is an infamous crime

and relies heavily upon this factor to reach its conclusion in this case.

The plurality should not use the legislature’s pronouncement in section

39.3(8) to control our constitutional duty to interpret the Iowa

Constitution.10

9The legislature defines “infamous crime” as “a felony as defined in section

701.7, or an offense classified as a felony under federal law.” Iowa Code § 39.3(8) (2013). 10It also can be argued the 2008 amendment amending article II, section 5 considered the legislature’s definition of “infamous crime” when the amendment passed. However, I think it is doubtful because the crux of the 2008 amendment was to replace 37

Second, the factors enumerated by the plurality are so imprecise

that a citizen of this state who has committed a crime has no idea as to

whether he or she is eligible to vote. Under the plurality’s factor

analysis, some persons convicted of a felony may be able vote, while

some persons convicted of a misdemeanor may not be able to vote. The

plurality’s factor analysis adds considerable uncertainty as to who can

and who cannot vote. Is a person with a conviction for operating while

intoxicated third, a felony, disqualified to vote? On the other end of the

spectrum, is a person with a conviction for aggravated misdemeanor theft11 disqualified to vote? This uncertainty will keep many qualified

voters from the polls for fear of prosecution for voter fraud.

Finally, our election officials will have the same problems as our

citizens in determining who can and cannot vote. This uncertainty will

lead to greater election day problems and the casting of an inordinate

___________________________ the words “no idiot, or insane person” with “a person adjudged mentally incompetent.” Compare Iowa Const. art. II, § 5 (1857), with Iowa Const. art. II, § 5 (amended 2008). I believe the explanation to the house joint resolution confirms my doubts. When the committee on state government introduced the proposed amendment the explanation provided in relevant part:

This joint resolution proposes an amendment to the Constitution of the State of Iowa relating to persons who are disqualified from voting or holding elective office. The resolution removes the words “idiot” and “insane” from the constitutional provision and substitutes the phrase “mentally incompetent to vote”. H.J. Res. 5, 81st G.A., 2nd sess. (2006). There is no indication in the official legislative history that the legislature considered the clause of article II, section 5 dealing with infamous crimes when it proposed the amendment. See City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 677 (Iowa 2005) (“We give weight to explanations attached to bills as indications of legislative intent.”). 11A person who steals property valued at $1000 commits an aggravated misdemeanor while a person who steals property valued at $1001 commits a felony. Iowa Code § 714.2(2)–(3). 38

amount of provisional ballots. See Iowa Code § 49.81 (providing for the

casting of provisional ballots).

For these reasons, I see no reason why at this time we should

redefine the term “infamous crimes.” Today I fear we are abandoning a

seaworthy vessel of precedent to swim into dangerous and uncharted

waters.