- Associated Press - Tuesday, March 4, 2014

KEOKUK, Iowa (AP) - An aide to Iowa Gov. Terry Branstad should not be allowed to testify as a prosecution witness at a voter fraud trial after she skipped a deposition last week, a defense lawyer said.

Rebecca Elming refused to be deposed in person or by phone on the advice of the Iowa Attorney General’s Office, said Curtis Dial, the attorney for Kelli Jo Griffin. Dial argued in a court filing Friday that Elming’s testimony should be excluded from Griffin’s perjury trial, which is scheduled to begin Thursday.

Griffin, 40, is charged with falsely declaring on a voter registration form that she was not an ineligible felon before casting a ballot in a Nov. 5 municipal election in Montrose. Prosecutors say that she knew she had lost her voting rights after she was convicted of a felony cocaine charge in 2008.

Griffin has pleaded not guilty. If convicted, she faces a minimum prison sentence of three years because she’s been charged as a habitual offender.

Her trial will be the first to stem from a contentious two-year investigation of election misconduct by Secretary of State Matt Schultz’s office and the Division of Criminal Investigation. Griffin is among 26 people charged with registering or voting illegally, mostly felons who lost their voting rights, or noncitizens. More charges are possible in coming weeks.

Elming, whose duties include maintaining records related to executive clemency, was listed as a trial witness by prosecutors last month. She had been expected to testify about the governor’s power under the Iowa Constitution to restore voting rights to individuals convicted of felonies and some aggravated misdemeanors, and records related to those decisions.

Attorney General Eric Holder has urged Iowa and other states to loosen restrictions that force former felons to ask the governor to restore their voting rights, saying they disenfranchise millions and disproportionately affect minorities. Democrats, who control the Iowa Senate, are sponsoring a bill that would automatically restore voting rights to some ex-felons, but that’s expected to die in the Republican-led House. Branstad defends the policy, saying it ensures ex-felons pay restitution before they can vote.

Dial issued subpoenas to Elming, state elections director Sarah Reisetter and Lee County Auditor Denise Fraise, ordering them to appear for Feb. 26 depositions as he prepared for Griffin’s trial.

Reisetter and Fraise complied, but Dial says prosecutors informed him that Elming had been advised by state lawyers that she need not attend the deposition or trial. Prosecutors shouldn’t be allowed to call her to testify or introduce any of the records that she was planning to authenticate, Dial argues.

Geoff Greenwood, spokesman for the Iowa Attorney General’s Office, said the office was working with Lee County Attorney Michael Short to resolve the issue. He declined to explain the legal advice given to Elming. A Branstad spokesman declined comment.

Short argued Monday that Elming should be allowed to testify through a sworn affidavit. Elming says in the affidavit that she “performed a diligent search” of records and found nothing to indicate that Griffin’s voting rights had been restored.

Judge Mary Ann Brown is expected to rule on the dispute before jury selection begins Thursday. Trial had been scheduled to start Tuesday in Keokuk, but a pool of 53 jurors was excused after court officials said a key participant was ill.

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