Absentee ballots wrongly excluded in Iowa House district 55 (updated)

“Every vote should be counted,” Democratic challenger Kayla Koether said in a statement after a recount showed her trailing Republican State Representative Michael Bergan by nine votes in Iowa House district 55. Her comments suggest Koether is preparing litigation to force the counting of 33 absentee ballots, which were mailed on time but not counted because the envelopes lacked a certain kind of postmark.

If Koether does not file suit before election results are certified on December 3, one or more of the disenfranchised Winneshiek County voters should take legal action. Election officials did not properly interpret Iowa statute when they excluded those ballots.

The initial count in House district 55 showed Koether seven votes behind Bergan. The recount completed on November 27, which only covered Clayton and Winneshiek counties, showed Bergan increased his district-wide vote total to 6,924, while Koether received 6,915 votes.

The 33 uncounted ballots in Winneshiek County include at least 31 from residents of House district 55–enough to change the outcome if every voter made a choice in the legislative race and at least two-thirds backed Koether.

Iowa law has long stated that absentee ballots arriving after election day can be counted only with a valid postmark. Thomas Nelson of the Waterloo/Cedar Falls Courier reported on November 13,

“We have ballots that don’t get counted every year because they aren’t postmarked,” said Ben Steines, Winneshiek County auditor. […]

The post office doesn’t automatically postmark ballots, Steines said. The ballots in question were processed in Waterloo.

“Any ballots received after Election Day that are not postmarked will not be included in the official results,” Steines said. […]

“The law is very clear. An absentee ballot, in order to be counted, must be received by the county auditor by 9 p.m. on Tuesday, Election Day, or postmarked the day before the election and received by noon on the Monday following,” said Dawn Williams, director of elections at the Iowa Secretary of State’s office. “That postmark has to be legible.”

Steines was following guidance from the Secretary of State’s office, but that advice doesn’t reflect the plain wording of Iowa Code 53.17(2) (emphasis added):

In order for the ballot to be counted, the return envelope must be received in the commissioner’s office before the polls close on election day or be clearly postmarked by an officially authorized postal service or bear an intelligent mail barcode traceable to a date of entry into the federal mail system not later than the day before the election and received by the commissioner not later than noon on the Monday following the election.

Multiple sources confirm “an intelligent mail barcode” is on the return envelopes of the disputed Winneshiek County ballots. If that barcode can prove that voters mailed their ballots on or before November 5, there is no valid reason to exclude them from the official count.

State law was written to ensure that voters couldn’t abuse the system by mailing ballots after election day. County auditors should take every reasonable step to determine whether ballots were mailed on time, but they shouldn’t favor a traditional postmark over a barcode that serves the same purpose. The Iowa Constitution protects the right to vote.

The full written statement from Koether on November 28 did not clarify whether she intends to file a lawsuit.

The Kayla Koether for Iowa campaign said today that with the completion of the Iowa House District 55 recount in Winnehiek and Clayton Counties Koether, the Democrat, trails Republican incumbent Michael Bergan by nine votes out of nearly 14,000 votes cast.

Even after the recount, there are thirty-three ballots in Winneshiek County that remain uncounted.

“Every vote should be counted,” Koether said. “We believe that these 33 ballots were mailed on time in accordance with the law, and that every effort should be made to count these votes. Our citizens voted in good faith, and their ballots should be counted in good faith.”

I will update this post as needed.

UPDATE: Koether filed suit in Polk County District Court on November 29, and a hearing is scheduled for November 30. Secretary of State Paul Pate and Winneshiek County Auditor Steines are the defendants. Key points from the court filing, enclosed in full below:

  • The return envelopes for all disputed ballots contain an intelligent mail bar code, which would show when the mail “was placed into the custody of the United States Postal Service.”
  • “Both the Winneshiek County Auditor and the Iowa Secretary of State have refused to obtain the information from the United States Postal Service.”
  • “The post office in Waterloo, Iowa is the distribution center for Winneshiek County and has the ability to read the intelligent mail bar code.”
  • Koether is seeking:

  • A temporary injunction to prevent Secretary of State Paul Pate from certifying the House district 55 election result on December 3.
  • An emergency writ of mandamus “requiring Election Officials Defendants to immediately obtain the date the thirty-three ballots entered into the federal mail system before it is lost […].”
  • An emergency writ of mandamus “requiring Election Officials Defendants to count the votes after conformation that the ballots were placed in the federal mail system by the deadline in Iowa law and for all other appropriate orders; and for a judgment for Plaintiff’s costs.
  • The Iowa Democratic Party released this statement on November 29.

    Koether Takes Legal Action to Guarantee Every Vote Gets Counted

    Petition Filed in Iowa District Court

    Des Moines, Iowa — Kayla Koether, Democratic Candidate in House District 55, took legal action today to request 33 voters from Winneshiek County who legally cast absentee ballots in the 2018 General Election have their vote counted.

    “Every legal vote should be counted. We believe that these 33 ballots were mailed on time in accordance with the law, and every effort must be made to count these additional votes. Our citizens voted in good faith, and their ballots should be counted in good faith,” said Koether.

    On Tuesday of this week, the recount boards in Clayton and Winneshiek Counties completed their work. After the recount, Koether trails Republican Michael Bergan by just nine votes out of nearly 14,000 votes cast.

    However, the recount board did not count 33 absentee ballots that arrived at the Winneshiek County Auditor’s Office after Election Day, including 29 that came in on November 7- the day after the election.

    “Every Iowan deserves to have their vote counted. There’s no reason to strip away the rights of these 33 Iowans when there is a simple remedy to ensure their vote gets counted,” said House Minority Leader Todd Prichard of Charles City.

    To date, the Iowa Secretary of State has refused to obtain the necessary barcode information from the United States Post Office (USPS) in Waterloo that can verify if the ballots were placed in the mail before Monday, November 5 and were legally cast. The Iowa Secretary of State has also refused to allow the Winneshiek County Auditor to count the ballots.

    The emergency petition filed in Polk County District Court today requests the Winneshiek County Auditor and Iowa Secretary of State use the USPS barcode information on the ballots to a) determine when the ballots were placed in the mail and b) count those votes that were legally cast.

    A copy of the petition is attached and a court hearing is set for Friday, November 30 at 1:30 pm.

    Here’s the court filing:

    NOVEMBER 30 UPDATE: Adding the four exhibits referenced in Koether’s court filing, which goes before District Court Judge Scott Beattie today.

    LATER UPDATE: According to a source in the courtroom, Judge Beattie indicated he will issue an order on the temporary injunction by 10:00 am on Monday, December 3.

    DECEMBER 3 UPDATE: Polk County District Court Judge Beattie (a Kim Reynolds appointee) denied Koether’s request for a temporary injunction to block the certification of the election. However, he granted her request to have ballots evaluated by the U.S. Postal Service. He ordered Steines to seek information from the post office to determine whether the ballots were mailed on or before November 5.

    In a written statement, Koether said, “This ruling is good news for the 33 Iowans who cast their ballots in good faith and deserve to have their votes counted. We’re pleased that the judge agreed that getting more information from the US Post Office on the uncounted ballots is essential. This is just the next step in making certain that every legal vote gets counted.”

    Full text of Judge Beattie’s order:

    LATER UPDATE: Steines reported to the court on December 5 that the postal service confirmed 29 of the disputed ballots were mailed on time (by November 5). One ballot was mailed too late (November 6), and the postal service did not obtain readable data for three envelopes.

    In a written statement, Koether said on December 6, “We now know for certain there are at least 29 Northeast Iowans who cast their ballots in good faith and followed the law to make sure their vote gets counted. Now that the dates have been verified, there is no reason that these Iowans should not have their votes counted.”

    The District Court has scheduled a hearing in this case for December 20, but it’s not clear whether the judge will order the 29 legally cast ballots to be counted. The Iowa Attorney General’s Office filed a motion to dismiss Koether’s lawsuit on December 7. Excerpt:

    This court lacks jurisdiction to resolve the third count of Plaintiff’s Petition. Plaintiff’s third count asks this court to order that the twenty-nine ballots that were mailed and recorded by the United States Postal Service before November 6 be counted by the Winneshiek County Auditor. However, the Winneshiek County canvass has been held, its results reported to the Secretary of State, and the outcome of the House District 55 election has been certified by the state canvass board. Iowa Code chapters 57 and 59 are the exclusive remedy for a candidate seeking to contest the result of an election for a seat in the General Assembly. Indeed, grounds for a contest include “that illegal votes have been received or legal votes rejected,” Iowa Code § 57.1(2)(e), or “any error in any board of canvassers in counting the votes.” Iowa Code § 57.1(2)(f). These grounds are at the heart of the Plaintiff’s argument to count ballots not counted at the time of the Winneshiek County canvass because the ballot return envelopes lacked a postmark and Intelligent Mail Barcode. Indeed, this court’s Order denying Plaintiff’s request for a temporary injunction recognized that the Plaintiff’s remedy to challenge the certification of the election is to contest the election in the House of Representatives pursuant to Iowa Code chapters 57 and 59.

    Koether still has time to contest the election result. But Judge Beattie previously held that she would need to demonstrate that the outcome would change–hard to accomplish without counting the disputed ballots. Also, the Republican-controlled Iowa House could reject Koether’s contest without considering the preferences marked on those 29 ballots.

    Here’s the motion to dismiss the lawsuit:

    Top image: State Representative Michael Bergan and Democratic challenger Kayla Koether.

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    • Intelligent Mail Barcode is a very specific thing

      The USPS has a very specific definition of what constitutes an Intelligent Mail Barcode (IMb). Each IMb ballot envelope would need to have a unique identifier/tracking number embedded into the IMb to allow it to be tracked using the USPS IMb system. Only one county ever piloted IMb tracking (Woodbury), but I don’t know that they or anyone else still use IMb because of the additional cost per ballot and the additional complexity of double-entering the tracking data (separate tracking via the SoS ID number and the USPS IMb number).

      The “barcode” on many envelopes (usually in orange ink) might be an IMb-like barcode applied by the USPS upon initial receipt into the USPS system, but it only contains destination information for sorting purposes. Unlike a postmark, it doesn’t contain any date-specific information that can be used to validate when the item was mailed.

      If the counties in question participated used IMb outbound-inbound tracking with sequence numbers, they would have already looked at the tracking information to decide whether or not to count the ballots before their first canvass.

      • I look forward to clarification

        for everyone involved and for the public about what type of IMb barcode was on the envelopes (routing or tracking). All someone would need to do is look at one envelope next to another one and see if the barcodes were the same or different. If they’re exactly the same, then there’s no tracking information available from the USPS, because there’s no way to differentiate one envelope from another.

        This should also be a signal to the Legislature and Secretary of State’s office that the Code and/or Rules need to clarify the difference between a generic IMb barcode (which anyone using a computer can generate and add to an envelope to assist in mail routing) and a Tracking IMb barcode (which requires a sequence number embedded in the barcode and a fee paid by the county).

        OR, re-write the Code to require all ballots to arrive before the close of polls, regardless of the method, and scrap the need for postmark-checking altogether. The vast majority of states do not use postmarks, and 2 of the 3 vote-by-mail-only states (Oregon and Colorado) require ballots to arrive by the end of Election Day, rather than using a postmark. Since the Legislature already pulled back on the last day to request by-mail (10/11 days before instead of 3/4 days before) this is probably next on the agenda.

        • I also look forward to clarification

          if the petition is accurate (that Pate and Steines refuse to ask the US Postal Service to try to retrieve information on date of entry), that is disenfranchisement.

          Unfortunately you are probably correct that the legislature will change the law to require all ballots to arrive by 9 pm on election day. That will lead to more voters being excluded. I will continue to encourage people to vote early in person rather than by mail if possible.

    • If I were a judge

      (which I surely am not, nor am I a lawyer), a reading of the Administrative Rules on IMb in Iowa would seem to indicate that it’s a very specific, Auditor-initiated version of the Barcode: “a. Prior to a commissioner’s implementation of IMb Tracing for an election, notice must be sent
      to the state commissioner.
      b. A commissioner may not implement or discontinue the use of IMb Tracing while an election is open once absentee ballots have been mailed pursuant to Iowa Code section 53.8.
      c. The state commissioner may issue a waiver to paragraph “b” if a commissioner’s ability to use IMb Tracing is impacted by issues beyond the commissioner’s control.”

      If Auditor Steines never notified the Secretary of State the he had chosen to use IMb tracing, I don’t know that he can decide to go back and use it now, even if he wanted to (not that it appears that he wants to, of course).

      That said, I looked at Exhibit 2 (thank you for posting those). My eyes told me that this was the USPS-Applied IMb (f=”Full”, t=”Track/Tick”, a=”Ascending”, d=”Descending”): “ftfffdfaafdtfadtfaataaaadfddfdfaddffffdtdaaafdfttadfftfafftaafdfd”

      I used an online decoding tool, and it decodes to this:
      Zip: 52101-1775
      Delivery Point: 99
      Barcode ID: 94
      Service Type: 009
      Mailer ID: 208673
      Serial Number: 094302278

      I don’t know if the USPS can use this to determine when the mailpiece entered the postal system, but that will be up to the judge to decide whether or not they can be compelled to do so, and whether or not that makes the ballot countable.

      The judge could rule that Steines never notified the SoS about the intent to use IMb, and thus can’t be told to use it now. And then, of course, follow it up with a requirement to clarify the rules (although such a reading WOULD clarify the rules, somewhat).

      A looser reading (which Koether is asking for) would set precedent to put ALL such ballots from November back into play; how many recounts and contests can the counties handle all at once?

      • Appears to be

        a fair reading of the law, from my perspective.

        A) Require Koether to file a Contest to delay canvassing, which is the correct legal remedy to postpone certification. Which, to my knowledge, she didn’t do.

        B) Require the USPS to read/decipher the barcodes and provide any details that are available, but only to preserve them as evidence.

        C) Kick the ball down the road on whether or not the barcodes meet the definition of IMb in the Code.

        I’m not sure I understand Koether’s (likely prepared) statement about this being “…the next step in making certain that every legal vote gets counted.” If she’s referring to clarifying the rules for future elections, I agree wholeheartedly. But if she’s referring to this particular election, it’s too late. The ballots can’t counted after the State Canvass is over if she never filed a Contest; we will only learn whether or not the Post Office received them before the deadline.

      • Egg on my face...

        at the misunderstanding of how/when to contest the results.

        I’m looking forward to the clarification of what does or doesn’t qualify as an IMb barcode under the Code. My gut says that a recycled code that is only good for 30 days and requires USPS cooperation to decipher is too cumbersome to qualify for the definition compared to a County-applied, serialized, individually numbered code with a self-serve customer interface to log in and check the numbers.

        And if the ruling goes the other way, I anticipate the Legislature will use it as an additional excuse to get rid of postmarks altogether and require ballots to arrive no later than Election Day to be counted, which seems to be where it’s all headed anyway.