Republican
National
Committee
Counsel’s Office

BY EMAIL
July 27, 2020
The Honorable Paul Pate
Iowa Secretary of State
1007 East Grand Avenue
Room 105, State Capitol
Des Moines, IA 50319
RE:

County Auditors’ Decision to Illegally Distribute
Pre-Completed Absentee Ballot Request Forms

Dear Secretary Pate:
We understand from recent press accounts that two county auditors will imminently be
distributing, or already have distributed, absentee ballot request forms with the statutorily required
information pre-populated based on data obtained from government records. Linn County Auditor
Joel Miller and Johnson County Auditor Travis Weipert are distributing forms with the voter’s
name, address, date of birth, and voter identification number (i.e., driver’s license number or last
four digits of the voter’s social security number) already filled out. This reckless act is not only a
severe breach of security (particularly for confidential information like a person’s date of birth and
voter identification PIN), but likely violates both the U.S. Constitution’s Equal Protection Clause
and Iowa law. We respectfully request that you exercise your authority as State Commissioner of
Elections, see Iowa Code § 47.1(1)-(4); see also id. § 53.1A, to issue an order prohibiting County
Auditors and other election officials from distributing absentee ballot request forms with voter
information filled out.
As an initial matter, we recognize the unique challenges that COVID-19 poses to voting
and the conduct of elections, and commend the aggressive steps your office has taken to protect
voting rights while preserving the integrity of the electoral process. Last week, on July 17, the
Legislative Council approved your proposal to automatically distribute blank absentee ballot forms
to each registered voter in the state. Requiring each voter to supply their own confidential
information, including their date of birth and voter identification number, serves as a “check” to
ensure that absentee ballot request forms are completed by the voters themselves, rather than

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 unscrupulous third parties. Moreover, having voters fill in their own information maximizes the
likelihood that it is accurate and up-to-date, rather than allowing voters to simply sign a form with
only a momentary cursory perusal. As you know, a voter can update his or her registration address
or name on record when completing the absentee ballot request form. § 53.2(8) Your decision to
send blank forms to all registered voters alleviates the need for, and preempts, county auditors’
decisions to distribute pre-completed forms revealing voters’ confidential information.
The Linn and Johnson County Auditors’ decision to indiscriminately distribute confidential
voter information not only undermines those voters’ privacy and jeopardizes the integrity of the
electoral process, but raises at least four serious legal concerns, as well. First, their decision likely
violates the U.S. Constitution’s Equal Protection Clause, U.S. Const., amend. XIV, § 1, because it
affords “arbitrary and disparate treatment” to voters participating in the same statewide election in
November. Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Applying this principle, courts
across the nation have invalidated election-related actions and policies when political subdivisions
within a state treated their respective residents substantially differently in the context of statewide
elections. For example, it is likely unconstitutional for counties within a state to adopt different
voting systems with materially different error rates. See, e.g., Common Cause v. Jones, 213 F.
Supp. 2d 1106, 1107 (C.D. Cal. 2001), reconsid. den’d, 213 F. Supp. 2d 1110 (C.D. Cal. 2002);
Black v. McGuffage, 209 F. Supp. 2d 889, 892 (N.D. Ill. 2002) (same); see also Stewart v.
Blackwell, 444 F.3d 843 (6th Cir. 2006), vacated and reh’g en banc granted, No. 05-3044, 2006
U.S. App. LEXIS 32545 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007). Courts
have likewise held that the Equal Protection Clause requires counties to have substantially uniform
policies concerning issues like third-party ballot harvesting, see Pierce v. Allegheny County Bd. of
Elections, 324 F. Supp. 2d 684, 706 (W.D. Pa. 2003); acceptance of electronic signatures, Mullins
v. Cole, 218 F. Supp. 3d 488, 490 (S.D. W. Va. 2016); or inclusion of a citizenship checkbox on
voting-related forms, Bryanton v. Johnson, 902 F. Supp. 2d 983, 999 (E.D. Mich. 2012).
Here, auditors in two counties are sending their citizens absentee ballot request forms with
their names, addresses, birthdates, and voter identification numbers already populated based on
government records. Thus, government officials are selectively revealing only to some voters
exactly the information from the statewide voter registration database that election officials would
deem legally sufficient to entitle them to receive an absentee ballot. Other voters, in contrast, are
left to fill out the forms themselves, subjecting them to the possibility that their information will
be declared incorrect or a “mismatch.” This system unfairly guarantees that only some voters will
receive an absentee ballot simply by signing the request form, while others face the potential for
rejection. The Equal Protection Clause prohibits government officials from according such
disparate treatment to voters participating in the same election. Your office’s decision to distribute
blank absentee ballot request forms to all voters throughout the state, in contrast, satisfies Equal
Protection restrictions by placing all voters on a level playing field, according everyone an equal
opportunity to apply for, receive and cast absentee ballots.
This situation is similar to Bryanton v. Johnson, 902 F. Supp. 2d at 989, in which the
Michigan Secretary of State directed county election officials to add a citizenship checkbox to
voter registration forms and absentee ballot request forms. The order emphasized that, even if
voters failed to check the box, they should still be permitted to vote. Election officials in several
counties, believing the order was invalid, refused to add checkboxes to the registration and
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 absentee ballot request forms they distributed to voters. The U.S. District Court for the Eastern
District of Michigan held that the Equal Protection Clause prohibited election officials in some
counties from distributing forms with citizenship checkboxes while officials in other counties did
not. Id. at 999 (“[I]nconsistent administration of the citizenship verification question will lead to
extensive arbitrary and disparate treatment during the November 6, 2012 general election . . . .”).
The court went on to specifically emphasize, “[N]on-uniformity is already inherent in the system
with regard to absentee voter applications . . . .” Likewise, here, voters in different counties will
be receiving materially different absentee ballot request forms. Some forms will have prepopulated information taken directly from governmental databases that precludes them from being
rejected due to inaccuracies or mismatches. Others are blank, subjecting voters to the risk of
rejection. Such non-uniformity and inconsistent administration is constitutionally intolerable.
Second, the county auditors’ actions appear to violate Iowa’s absentee voting statute, as
well. State law was recently amended to specify that “a registered voter shall provide” various
pieces of information on their absentee ballot application, including their name, address, date of
birth, and voter identification number. Iowa Stat. § 53.2(4)(a)(1)-(6). The statute goes on to
provide, “If insufficient information has been provided,” election officials will attempt to notify
the voter. Id. § 53.2(4)(b). State law expressly requires the voter to provide the requested
information. This conclusion is even more apparent when the newly enacted version of the statute,
see 2020 H.F. 2643, §§ 123-25 (eff. July 1, 2020), is compared to the previous version. Prior to
the recent amendment, this provision was written in the passive voice, specifying only that each
absentee ballot application “shall contain” the specified information. Iowa Stat. § 53.2(4)(a)
(2018). The legislature’s decision to specifically change § 53.2(4)(a)’s language demonstrates that
the voter must play some active role in “provid[ing]” the information on his or her application.
The counties’ prepopulated forms violate § 52.3(4)(a) because the only thing they require voters
to provide is their signatures.
Third, the county auditors’ actions likely also violate Iowa’s election emergency statute,
Iowa Code § 47.1(2)(a). That provision allows the state commissioner of elections—you—to
“exercise emergency powers over any election being held” when a natural disaster or other crises
occurs. Iowa Code § 47.1(2)(a). The law specifies, “The state commissioner’s decision to alter
any conduct for an election using emergency powers must be approved by the legislative council.”
Id. It further empowers the commissioner to “adopt rules describing the emergency powers and
the situations in which the powers will be exercised.” Id.
The county auditors violated this statute by taking it upon themselves to exercise
emergency powers without authorization from either your office or the Legislative Council. When
you, in your capacity as state commissioner of elections, wished to distribute blank absentee ballot
forms to voters, you were required to seek authorization from the Legislative Council, see Sec’y
of State Paul D. Pate, Emergency Election Directive (Ju1y 16, 2020) (attached as Exhibit 1), and
the Council approved it, see Letter from W. Charles Smithson, Secretary of the Iowa Senate, to
Paul Pate, Secretary of State, Notice of Legislative Council Decision on July 17 Emergency
Election Directive (July 20, 2020) (attached as Exhibit 2). It would be patently absurd and
completely undermine the legislature’s express intentions to construe § 47.1 as requiring you to
seek permission from the Legislative Council to distribute blank absentee ballot request forms, yet

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 allowing county officials to unilaterally distribute prepopulated forms without authorization from
either your office or the council.
Moreover, § 47.1 expressly grants you the authority to address election emergencies such
as COVID. You have appropriately exercised that authority by obtaining the Legislative Council’s
approval to distribute blank absentee ballot request forms to voters throughout the state. The
county auditors are infringing on your emergency powers under § 47.1 by second-guessing your
judgment and unilaterally disseminating pre-populated forms instead. Since state law does not
grant county auditors election emergency authority to “alter any conduct for an election,” and their
actions directly contravene your judgment in responding to the emergency, they are illegal.
Finally, the county auditors’ decision to distribute pre-populated absentee ballot request
forms without authorization may violate Iowa’s prohibition on solicitation by public employees.
Iowa law provides that, with certain inapplicable exceptions, it is unlawful for any state, county,
or municipal employee to solicit either applications, or requests for applications, for absentee
ballots, or to take affidavits in connection with absentee ballots, in the course of their employment.
Iowa Code § 53.7(1). It is likewise illegal for any public officer or employee to require a public
employee to either “solicit an application or request an application for an absentee ballot” or “take
an affidavit or request for an affidavit in connection with an absentee ballot application.” Id.
§ 53.7(2). Distributing pre-completed absentee ballot request forms, and encouraging voters to
simply sign and return them, appears to constitute solicitation of an application for absentee ballots
in violation of these provisions. Again, your office had to receive specific permission from the
Legislative Council before circulating blank forms. The County Auditors, in contrast, have no
such legal authorization for such ultra vires actions.
In conclusion, we respectfully request that you immediately issue an emergency rule, order,
directive, or other appropriate instrument:
●

prohibiting all county auditors from distributing absentee ballot request forms that
are pre-populated with any information specified in Iowa Code § 53.2(4)(a);

●

requiring county auditors to discontinue any such activity;

●

directing any county auditors that have distributed absentee ballot request forms
prepopulated with any of the information specified in Iowa Code §53.2(4)(a) to:

●

○

individually notify each voter by mail and e-mail that the prepopulated form
is invalid and may not be used to request absentee ballot; and

○

send a replacement blank absentee ballot request form to each voter who
received a prepopulated form.

directing any county auditor who receives a prepopulated absentee ballot request
form back from a voter with the voter’s signature shall:

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 ○

disregard any prepopulated information on the form for purposes of
determining compliance with Iowa Code § 53.2(4)(a);

○

declare the form legally insufficient for transmitting an absentee ballot to
the voter; and

○

proceed under Iowa Code § 53.2(4)(b)’s provisions for when “insufficient
information has been provided.”

Please do not hesitate to contact me at if you have any questions. I look forward to the
opportunity to resolve this issue without the need for litigation. The auditors of Linn and Johnson
Counties have given their voters an unconstitutional advantage in the November election; blatantly
violated state law provisions governing absentee voting, election emergencies, and solicitation of
absentee ballot applications; undermined the authority of both your office and the Legislative
Council; and needlessly circumvented crucial safeguards on the integrity of the absentee voting
process. I look forward to receiving your response at your earliest convenience.
Respectfully submitted,

J. Justin Riemer
Chief Counsel
Republican National Committee

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