Ruling on Iowa secretary of state's noncitizen voter order to come by Sunday

A federal judge says he will rule this weekend on whether the Iowa secretary of state illegally singled out more than 2,000 Iowans for ballot challenges by election officials.

The League of United Latin American Citizens of Iowa and several individual voters are suing Pate over his Oct. 22 letter to Iowa's 99 county auditors, directing them to challenge the citizenship of 2,176 registered voters if they cast ballots in Tuesday's general election. Under Iowa law, those voters would be able to cast provisional ballots, but would have to come back with proof of citizenship, such as their passport, within a week in order for their vote to be counted.

Pate's office identified the voters based on their having previously identified themselves as noncitizens on Department of Transportation forms. In 154 cases, he said, the voters did so after previously voting or registering to vote. It said those cases have been referred to law enforcement "for potential prosecution."

In its lawsuit, filed Wednesday, LULAC argued most people on the list, including the four named plaintiffs, are naturalized citizens who applied for drivers licenses as legal residents and later obtained their citizenship — in some cases many years ago. To now require these voters to cast provisional ballots on the basis of out-of-date DOT data would violate federal election law as well as constitutional guarantees of the right to vote and equal protection, LULAC contended.

LULAC has asked the court for an injunction against Pate's directive. Lawyers representing it Pate argued the issue on Friday before U.S. District Judge Stephen Locher. He asked the parties to file supplemental briefs Saturday and promised a ruling by the end of the weekend, just two days before Election Day.

How many challenged voters are actually noncitizens?

Attorney Jesse Linebaugh, representing LULAC, argued that while states have the authority investigate and remove invalid voters, they cannot do so on an unconstitutional basis, such as singling out naturalized citizens.

"This is not an individualized basis," he said of Pate's letter. "This is a list of 2,176 individuals who have been targeted on the basis of national origin.

Related: Here's what state officials, law enforcement are doing to make the 2024 election secure

It's not known how many people on the list are actually citizens, but Johnson County officials announced Thursday evening that they had confirmed the citizenship of 63 people among the 295 Pate directed them to challenge. One person was referred to police for additional clarification and investigation on whether they were eligible to vote," and the remaining voters had not yet responded to letters alerting them to the situation.

Solicitor General Eric Wessan responded that Pate's office had intentionally narrowed down its criteria to capture as few false positives as possible. He also said that the state has consulted with U.S. Customs and Immigration Services, which has said there are "hundreds" of noncitizens on Iowa's list but has, thus far, refused to share those names with the state. (In a news release after the hearing, Pate and Attorney General Brenna Bird put that number at "approximately 250").

If USCIS does provide those names prior to Tuesday, Wessan said, Pate is prepared to update county auditors with an updated list.

"We're trying to do this with as little harm as possible," he said.

Did Pate have authority to send Oct. 22 letter?

Locher also pressed both sides on whether Pate has the authority to order county auditors to challenge particular ballots, and noted that one section of Iowa law Pate cited in his Oct. 22 letter doesn't exist.

Wessan said that despite Pate's letter, a county auditor who does not believe there is "reasonable suspicion" to challenge a ballot, is not required to do so under Iowa law. He also clarified that, if county officials have other information confirming a voter's citizenship, they do not need to challenge their ballots.

Linebaugh, though, noted that Pate said in his letter auditors were "directed" to challenge the ballots, and that a recent state law allows Pate to fine county auditors $10,000 for "technical infractions." The state's auditors, he said, took Pate's letter to suggest a mandatory duty.

Locher asked both sides to file supplemental briefings by noon Saturday on the issue of Pate's authority. He also asked the state to explain in greater detail what led officials to begin comparing voter rolls to DOT data only in the closing months of the election cycle.

"There have been concerns for years and years and years about noncitizen voting, and I don't think those concerns have been substantiated to more than a miniscule degree," he said. "Why was it only in the late summer of 2024 that (Pate's office) decided to do anything about it?"

What could the court do?

Locher said that even if he finds Pate's letter was improper his options to address it are limited so close to the election. Not only has the U.S. Supreme Court held courts should be reluctant to interfere with election procedures close to an election, but there wouldn't be time — for example — to order Pate to mail notices to affected voters and have them received before Election Day.

Linebaugh asked the court for an order holding that Pate's order is unconstitutional, and telling county auditors to disregard it.

"It's pretty simple that we are not going to do that to these American citizens when they show up to vote. Full stop," he said in a call with reporters after the hearing.

Wessan, though, told Locher the standard for an injunction, especially so close to an election, is too high for the plaintiffs to overcome, and that asking voters to file provisional ballots is the least intrusive way the state has to assure all votes cast are valid.

"We want their vote to count," he said of LULAC's plaintiffs. "If their vote is effectively canceled out by a noncitizen voter, that's not going to happen."

Reporter Kyle Werner contributed to this report.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.

This article originally appeared on Des Moines Register: Iowa voter challenge lawsuit ruling to come by Sunday