By: Peter Quinn
Iowans are no strangers to potentially hazardous jobs, as anyone who has ever worked with a thresher can attest. But recent legislation has caused an unlikely profession to rocket up the list of professions with great personal danger attached: election officials. The danger, however, comes not from pointy farm equipment, but rather from the sudden potential for large fines and criminal charges for simple mistakes.
Iowa has not been immune to the crush of election reform demands of the past year. Many states controlled by Democrats have sought to expand voter access and relax limitations on voting in the name of eliminating voter suppression; many states controlled by Republicans have taken the opposite approach in the name of election integrity. Iowa is no different in that respect—Republicans hold a trifecta over state government, and in March of 2021 successfully legislated several restrictions on voting to shore up election integrity.
However, the law’s impact on local election officials is surprisingly punitive. This troubling new approach allows the State Commissioner of Elections (actually the elected Secretary of State) to issue “technical violation” letters to County Commissioners of Elections. Technical violations of the election code can range from severe and alarming violations of state election laws (for example, a nightmare scenario of an election official subverting a vote count by tampering with equipment) to the largely harmless and mundane. These violations can be committed by the county commissioner themselves, or any number of election officials and workers below them.
Coupled with the restrictions now in place for the 2022 election in Iowa, such mundane violations now include activities that many County Commissioners of Elections likely thought to be beneficial to their county’s voters. Proactively sending out absentee ballot request forms—not ballots, just requests—is now unlawful according to the legislation signed by Governor Kim Reynolds. And even less benign violations that are corrected quickly enough that a voter would not be adversely affected are nevertheless subject to technical violation letters. Imagine a county commissioner receiving a technical violation based on a polling place opening at 7:01 A.M. instead of 7:00 A.M., for example, or an election worker accidentally assigning a voter to the wrong precinct but fixing the mistake before Election Day.
The phrase “technical violation” seems to acknowledge the inherently trivial nature of whatever the action in question might be. Counterintuitively, however, the new law enshrines in the state election code a requirement that the Secretary of State fine any County Commissioner who receives notice of a technical violation. The Secretary is authorized to ratchet the fine up to a full $10,000.
It is unclear from the language of the statute whether this fine is issued personally to the County Commissioner or in their official capacity as a commissioner (thus becoming a liability for the county). In either case, however, there are tremendous negative consequences. If the fine is assessed to the Commissioner in their personal capacity, it can be a staggering financial hit; $10,000 is a large amount of money for a person in a position whose statewide average salary is $67,322. Even if a fine is instead assessed to the county, many rural counties in Iowa would likely be very adversely affected by a fine of that size and may need to cut jobs or services to account for it, especially if multiple fines begin to stack up.
The statute is also unclear as to whether one action could result in multiple technical violations. For example, if a commissioner were to mail out 1,000 unsolicited absentee ballot request forms to voters, would this be one infraction with one $10,000 fine, or 1,000 infractions with a potential $10,000,000 in fines? The law does not provide an answer. Regardless of who it might be levied against, such a fine would be absolutely crippling.
The law provides an alternative to paying these fines, however: a suspension of up to two years for a county commissioner who fails to pay. These commissioners are democratically elected at the county level every four years, such a suspension would obviously subvert the will of the voters in the county. And, because the most likely time for technical violations to occur is immediately after an election, county commissioners facing suspension could be penalized for the actions of a previous commissioner having just left office or sidelined for the entirety of the rest of their own term (if they are midway through a four-year term). It seems as though the law specifically envisions this latter scenario, providing that a suspension will lift after “the office is vacated and a successor is elected.” This would allow the Secretary of State to pile on fees that cannot possibly be paid in the hopes of a bothersome commissioner being neutralized until the next election. The obvious partisan implications of such a possibility are troubling.
Finally, even once the fines or suspensions take effect, the Secretary of State may inform the state Attorney General and county attorney of potential election misconduct, with the possibility of a criminal investigation. Alarmingly, the new law classifies “failure to perform duties” by election officials as the crime of “election misconduct in the first degree,” a class D felony punishable by up to five years in prison. The definition given to “failure to perform duties” is extremely broad, including failing to either perform most of the duties in the election code or implement guidance from the Secretary of State.
There is strong potential for this law, now in effect for the upcoming 2022 elections, to upend the normally staid work of county commissioners of elections. Given the possibility of invasive and punitive effects on their work, it may also serve to drive election officials out of office and away from potential fiscal and criminal liability—exacerbating an already concerning trend. It remains to be seen whether Iowa’s example will spur other states to put their local election officials under a similar microscope, or if the potentially negative impacts of the law will leave it largely unenforced.