IOWA CITY, Iowa (AP) --- A state push to bring felony charges against noncitizens who voted in recent Iowa elections could run into two key roadblocks: local prosecutors who do not want to pursue the cases and jurors who may find no criminal intent.
The Iowa Division of Criminal Investigation announced Thursday that three Council Bluffs residents — a husband and wife from Canada and a Mexican citizen living legally in the U.S. since 1986 — were arrested and charged with election misconduct for illegally voting. They were the first, and likely not the last, charges brought under an unusual two-year, $280,000 contract Iowa Secretary of State Matt Schultz's office signed with the DCI to investigate voter fraud, his signature issue.
But the push to prosecute legal residents who were ineligible to vote because they are not U.S. citizens may raise questions about selective enforcement and whether they had the intent to commit fraud. Police and prosecutors this year already declined to bring some similar cases discovered before the statewide effort started, citing a lack of intent, the cost associated with the cases and the harsh penalties they entail.
Election misconduct is a class D felony punishable with up to five years in prison and a $7,500 fine. Convictions could trigger consequences for residents' immigration status, including their possible removal if the offense is considered an aggravated felony, defense lawyers said.
Juries may be reluctant to convict suspects if they believe they simply made a mistake and thought they were eligible to vote, according to defense lawyers, who note the law requires the actions to be "willful."
"Given the stakes, what the client is probably going to tell you is, 'take it to trial.' That will put all this in play in front of a jury," said Bob Rigg, who directs the criminal defense program at Drake University Law School. "There might be some impediments to these types of prosecutions, and I have a feeling we're going to find out. There's been no appellate decisions on that statute and it sounds like we're going to make some."
Deciding when an improper vote amounts to a crime could prove difficult.
Records released from Schultz's office to The Associated Press, for instance, show that a noncitizen in Iowa Falls voted last year but was not prosecuted, and Schultz's own lawyer wrote that the man did not commit any "intentional wrongdoing that could be classified to the level of 'fraudulent'." Mistaken local elections officials allowed him to vote after he provided his alien registration number on his green card.
"I did not get the impression that there was any intent to vote in a fraudulent manner," an Iowa Falls police captain wrote in February.
In Linn County, home to Cedar Rapids, County Attorney Jerry Vander Sanden has declined to bring charges against a few persons who mistakenly voted twice during recent elections. The county auditor sought prosecution, but Vander Sanden replied in emails that those voters had "no criminal intent" to cast absentee ballots and vote a second time at the polls. He said they cherished their voting rights and had "a good faith belief" that their absentee ballots hadn't been received.
"I am not going to charge someone with a felony because they made an innocent mistake," he wrote in July. "It is not so much a matter of cost as it is fairness and the proper exercise of prosecutorial discretion."
Schultz has said that he turned over names of more than 1,000 potential noncitizens who voted since 2010 for investigation after comparing lists of noncitizens with driving permits against those who voted in recent elections. DCI agent Dan Dawson, who was reassigned from the major crimes unit, is subpoenaing voting records, checking their citizenship status, and interviewing suspects as he builds cases.
DCI Assistant Director Charis Paulson said investigative findings will be turned over to county attorneys, who will decide whether to file charges. She said the cases in Council Bluffs were the first completed, and it's too soon to say how prosecutors will exercise their discretion. She said intent is one element of election misconduct and "we do our best to find evidence that supports that."
Paulson said a key part of proving intent will be signed voter registration forms in which individuals affirm they are U.S. citizens. The complaints filed against 52-year-old Albert Harte-Maxwell and his wife, 49-year-old Linda Harte-Maxwell, claim both falsely swore to be citizens when they registered. But the Harte-Maxwells told investigators that they mistakenly believed, as legal residents, they could vote in every election except the presidential race.
The third suspect, 40-year-old Maria Ayon-Fernandez, told investigators she had registered to vote long ago when she lived in California after she became a lawful U.S. resident in the 1980s and had it switched to Iowa when she moved. She claimed she was a U.S. citizen, but DCI concluded otherwise, calling her "a citizen of Mexico residing in Council Bluffs."
"I do believe there's going to be difficulty in proving these folks intended to commit a voter fraud," said Chris Kragnes, a Des Moines lawyer and board member of the Iowa Association of Criminal Defense Lawyers. "The average fair-minded citizen would probably be sympathetic to their plight that they thought they could vote."