Lawmakers should act on absentee ballots, mail barcodes

Bev Clark calls for action to prevent a 2020 repeat of the scenario that played out in Iowa House district 55. -promoted by Laura Belin

The Iowa legislature must clarify the law that determines the timeliness of absentee ballots. Some 41 percent of Iowans who participated in the 2018 election voted early, according to the Secretary of State’s certified results. That’s 547,205 ballots!

Those are the known, counted absentee ballots. Some of them may not have complied with the postmark requirement, but were counted anyway. In the very tight election for Iowa House district 55, where only nine votes separated the candidates, Winneshiek County rejected 29 late-arriving absentee ballots without a postmark. But those ballots did have an intelligent mail barcode, proving they entered the postal service before election day. The dispute centered on what kind of mail barcode.

The essence of the problem: the Iowa Code refers to but does not define “intelligent mail barcode” or “imb.” Likewise, the Iowa Administrative Code refers to, but does not define “Intelligent Mail barcode” or “IMb.”

Iowa law requires that absentee ballots bear a postal mark or an intelligent mail barcode. The Administrative Rules Code requires a postmark or “Intelligent Mail barcode, “IMb” on absentee ballots. The preamble to the rule indicates the intent to allow county commissioners of elections to utilize the United States Postal Service’s Intelligent Mail barcode (“IMb”) to determine timeliness, as an alternative to the postmark. “IMb” refers to a unique county barcode program set up to pre-print a unique “IMb” on the return ballot for each voter. This return ballot can then be traced to its entry in the mail system, allowing determinations of timeliness.

Only six counties in Iowa voluntarily participate in this system. It costs more in printing and personnel time to set up. Winneshiek County did not participate in 2018. The dispute centered on whether the postmark was the only allowable indicator of timeliness. On the contested ballots, the postmark was missing. All that was available on the envelopes was an “imb” postal mail code, not an “IMb” county specific mail code, to answer the question of timeliness.

It took a court order to answer this question. The “imb” on each of the contested ballots was read at the post office; 29 of 33 ballots were, in fact, timely mailed. The court then said the legislature was the proper place to decide the contested election. The rules provide that the ballots could be opened and counted. But the Republican-controlled Iowa House voted along party lines not to open or count the ballots, thus keeping in place the Republican legislator who may or may not have been the legitimate winner of that election.

So, we have a “voluntary” barcode tracing process, “IMb,” enabled but not defined by rule making, used only in six counties in Iowa, to pre-print an “IMb” on the return envelopes. We also have a postal system that no longer postmarks all the mail, but does mark envelopes with an “imb” after the return envelope is deposited in the mail. This “imb” was contested as not being a legitimate way to determine timeliness.

Voters in the other 93 Iowa counties now have uncertainty. Their absentee ballots may or may not arrive with markings that show timeliness. In House District 55, absentee ballots without postmarks were counted in Fayette County but not in Winneshiek. Yet those 29 uncounted ballots might well have changed the outcome of the election, which Michael Bergan won by nine votes.

Unless the legislature cleans up the discrepancies in the interpretation and application of the rules and the law surrounding absentee balloting, this scenario could be repeated in the next election. So, does the Republican-dominated legislature want to fix this problem, or will this simply be another way to suppress voting, assuming more Democrats continue to vote by absentee ballot?

Those 29 uncounted absentee ballots remain on my mind. I listened intently to the interviews of some of these voters and the statements made by various legislators in the Iowa House floor debate. A number of these voters had health issues impacting their decision to vote by mail, rather than at the polls. It really bothers me that these voters, who thought they had done everything right, in the face of their own personal difficulties, are instead disenfranchised. Why? Over the definition of “intelligent mail barcode!” Is it “IMb” or “imb” or both?

I reflected on the absentee ballot voters I encountered as a volunteer in this past election. While canvassing in an unfamiliar neighborhood, I knocked at an open door to ask where the address I was seeking could be found. A lady’s voice welcomed me in. I soon saw that she was in a cast. I explained what I was doing as a volunteer and she told me she needed an absentee ballot herself as she had fallen, breaking her leg, soon after having surgery. It was pure happenstance that I met her and was able to help her get a ballot.

Another absentee ballot voter lived in very austere conditions, rarely venturing out due to being totally dependent on others for transportation. Many absentee ballot voters are elderly, finding getting to the polls very difficult. Often they have to wait for family members or others to help them get their ballots back in the mail.

A family I met lived a considerable distance from the polling place so all eligible voters requested absentee ballots when I knocked on their door.

The huge construction project on Highway 330 this past summer caused many people in the countryside west of the highway to be essentially cut off from their polling place. It took some driving gymnastics to get from one point to another. In addition, with the heavy rains, many of the gravel roads were very difficult to travel. In some places, a bridge was out or nearly impassable. People unfamiliar with country driving found themselves in a mess on B and C roads.

People decide to vote by absentee ballot for various reasons. Many mailed their ballots before the election, trusting that they would arrive at the election commissioner’s office in the courthouse and be counted. According some legislators who spoke during the Iowa House hearings, more than a thousand ballots around the state were rejected due to missing a required “postmark” or “IMb” (barcode.) No one knows how many of those ballots were timely mailed. Only the disputed Winneshiek ballots were brought before the House election contest committee.

Will we continue to allow only those absentee ballots that have either a postmark or an assigned barcode “IMb” pre printed on the ballot return envelope, remembering that only six counties opt into this system? What are we going to do about all of the other Iowa counties if their ballots come in without a postmark but with an “imb” put on by the post office? The old-fashioned postal stamp could be replaced entirely by an intelligent mail barcode, “imb.” Will a court order be required each time to count ballots in envelope with only an “imb?”

Surely we can do better than a system where a vote being counted depends on where someone lives.

Our legislators owe Iowans a process that is clear and can be trusted to result in timely ballots being counted, without resort to the courts. Every county should be required to follow the same procedures. We should either be all in or all out on requiring “IMb” tracing on absentee ballots.

The guiding value to ensure that voters’ voices are heard should compel our legislators to act this session to establish consistent absentee ballot voting procedures.

Bev Clark is a longtime social and environmental activist, educator, and retired lawyer with deep roots in Iowa farming. Author photo, used with permission:

Top image: Envelope containing Liam Murphy’s uncounted ballot. The photograph was part of an exhibit for Kayla Koether’s lawsuit seeking to force the disputed ballots to be counted. Murphy also provided an affidavit for that case.

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  • The legislature isn't likely to act

    The legislature should go in to the statute and define “intelligent mail barcode”. I don’t think we’re likely to be happy with how a Republican legislature defines that, however, and I think it will probably have the same problems that the administrative rule has — it uses the old Intelligent Mail Barcode tracing system, which is a voluntary program (not used anymore — known now by another name), so that some counties participate and most don’t. Maybe that works for just a county election, but once you start including statewide races, I think you have an equal protection problem of whether someone’s vote is being counted. So yes, it is important to have a rule that applies to all county offices equally.

    In the absence of action by the legislature, a person can initiate a petition for rulemaking to change the administrative rule at the Secretary of State’s office. The rule to do this is IAC 721–8.1(17A), which sets forth the form and contents that the petition must take. The rules indicate that a brief may be attached. Within 30 days, the agency must submit a copy of the petition and brief to the administrative rules coordinator (person on the governor’s staff who oversees rules) and to the administrative rules review committee. If requested in the petition, the agency must schedule a brief and informal meeting between the petitioner and agency to discuss the petition. The agency may request more information or arguments, and may also solicit comments from any person on the substance of the petition. Also, “comments on the substance of the petition may be submitted to gency by any person. IAC 721-8.4 (1).

    The agency has 90 days to make a decision in writing. They can deny, including the specific grounds for the denial, or grant the petition and notify the petitioner that the agency has instituted rule-making. IAC 721–8.4(2).

    Pate is not going to be inclined to grant such a petition. The brief will have to be very convincing and leave him no options. It is my understanding that county auditors don’t want to have to use the barcodes, probably because of the increased cost, but maybe also because of the increased effort it would require, so there would be negative comments from that group. People who have had their ballots excluded because of a lack of a postmark should speak in favor of a change to the rule. But if there is strong legal evidence that there is an equal protection problem with the rule as it is currently written, that should require some change. Also, as noted above, it refers to tracing, which no longer exists. That alone should require the rule to be updated.

    The process of rewriting and going through the rules process takes approximately 8 months, if there are no delays. Add the 90 days of this petition process, and it will take about a year, conservatively, to get the rule adjusted in some way. I think it is a battle worth fighting, though.

    Note that IAC 721–21.14 (53) deals in depth with Intelligent Mail barcode Tracing. That needs to be updated, changed, or deleted.
    IAC 721 –21.12(47,53) refers to Intelligent Mail barcode Tracing. That needs to be updated.
    There may be others.

    • Making changes to absentee ballot "timeliness" proof

      Your excellent response goes to the petition I have been wondering about. Do you know “who” would be best positioned to file this petition with Pate? I worry inertia could prevent anything being done either administratively or legislatively.

      • Anyone can file

        It would just need to be someone who understands the law and the related rule. Could be any group or individual.

        The new problem is the bill filed today that eliminates the barcode language from the statute, and simply requires absentee ballots to be in county auditor offices by the close of polls on election day.

        What’s interesting is also in the bill, it gives the Secretary of State authority to create rules under Code Chapter 53, which is where the intelligent mail barcode language is, and under which his office created the Intelligent Mail Barcode Tracing rule. Is that an admission they didn’t have the authority to pass that rule? Curious.

        There’s a subcommittee on the bill tomorrow, and it has to pass out of Committee this week to survive funnel. It has a lot of things in it, some controversial, and it may be passed to be kept alive for later debate. They have the chance to choose for more voters, but they’re moving in the direction of cutting off voting, in several places in the bill. Such a shame they choose voter suppression.