On Wednesday, April 13, 2011 the Iowa Court of Appeals issued a decision in Bettendorf v. Scott County Auditor Roxanna Moritz which reversed a lower court decision regarding the timing of vacancy elections. 

Auditor Moritz had told Bettendorf that the city should formally ask to include a vacancy on the city park board on the 2010 general election ballot.  In response, Bettendorf filed a law suit seeking to nullify the Auditor’s interpretation of Iowa law, citing 20 years of past practice as one of the reasons.  The local court sided with Bettendorf, but the Appeals Court ruled the provision had to be read in context with the entire statute, an argument that the County had made to the local court.  The practical effect of this ruling would have been to place this vacancy before the voters of Bettendorf seven months after the appointment, instead of 20 months after the appointment. 

Of course the 2010 general election has already occurred and the issue would be moot.  The Appeals Court found that it could reach the issue involved in the case, even though the 2010 general election had already occurred, based on the public interest exception to the mootness doctrine.  The question presented to the court was public in nature (as opposed to a private dispute), public officials were seeking the court’s guidance and the issue was likely to arise again.

The decision in this case turned on statutory interpretation.  However, there is an additional layer of constitutional law which had not been pleaded at the lower court level and therefore not before the Court of Appeals.  Article XI, Section 6 of the Iowa Constitution provides for filling vacancies by election.  It states in pertinent part, “(A)ll persons appointed to fill vacancies in office shall hold until the next general election, and until their successors are elected and qualified.”  The Iowa Supreme Court has interpreted this language to mean that vacancies in elective office must come up for election at the next general election.  See, State Ex. Rel. Halbach v. Clausen, 250 N.W. 195 (Iowa 1933).

A bill now before the Iowa Senate would attempt to negate this requirement by defining the term “general election” to include an additional “city general election” during which vacancies in city offices would be placed on the ballot, and preventing such vacancies from being on the general election ballot. 

However, this provision would run afoul of Article II, Section 7 of the Iowa Constitution.  Article II, titled Right of Suffrage, makes various provisions regarding elections and the right to vote.  Section 7, titled General election, defines the general election to include state, district, county and township offices, and grants authority to the general assembly to set the time for such general election.  It does not give the general assembly authority to create special categories of general election such as “city general election.” 

Arguably, those who want to change this provision for vacancy elections need to address this at the constitutional level with an amendment to the Iowa Constitution.  Amending the Iowa Constitution would require a vote of the people to approve the amendment.  This only makes sense because it is their right to vote for their representatives which is at stake in this matter.