Envelopes containing 29 absentee ballots that Winneshiek County voters mailed on time will likely remain sealed forever. Time has run out for Democratic candidate Kayla Koether to sue over how Iowa House Republicans handled her contest of the 2018 election result in House district 55.
It is also too late for any disenfranchised voter to challenge a process that placed an administrative rule about mail barcodes above the fundamental right to vote guaranteed by Article II of Iowa's constitution.
END OF THE ROAD FOR ELECTION CONTEST
House Republicans voted on January 28 to accept the majority report of a special Election Contest Committee, which had concluded "there exists no legal authority to open and count the twenty-nine ballots in question." Those ballots could have changed the outcome of a race where certified results showed Koether trailed GOP State Representative Michael Bergan by nine votes.
pursuant to Iowa Code § 59, the parties can conduct discovery, issue subpoenas and take depositions as part of the contest procedure. The statute even allows the Plaintiff the right to have the ballots opened and considered. See Iowa Code § 57.5 (2018).
Indeed, state law is unambiguous.
57.5 Recanvass in case of contest
The parties to any contested election shall have the right, in open session of the court or tribunal trying the contest, and in the presence of the officer having them in custody, to have the ballots opened, and all errors of the precinct election officials in counting or refusing to count ballots corrected by such court or tribunal.
The minority report submitted by Democrats on the Election Contest Committee spelled out how Republicans failed to give Koether due process. It also asserted an equal protection violation, since some late-arriving ballots with no postmark were counted in Fayette County, but not in Winneshiek.
Koether seemed to have solid ground to go back to District Court. But Iowa Code 62.20 gives the "party against whom judgment is rendered" in an election contest 20 days to file suit. (Code section 57.6 states that provisions of Iowa Code 62 "shall be applicable [...] to contested elections for other offices.") More than 30 days have passed since the Iowa House dismissed the contest and declared Bergan the winner.
Bleeding Heartland sought comment this week from Koether, her attorney Shayla McCormally, and Iowa House Minority Leader Todd Prichard on the decision not to file suit. I will update this post if I receive any response on the record. UPDATE: Prichard replied by e-mail on March 4, "The feeling amongst myself and House Democratic leadership was that given the slim chance of a court overturning the House vote and the estimated high cost of appealing, we were at the end. Speaking for myself, I was very disappointed in the partisan vote and felt the votes should have been counted."
THE ROAD NOT TAKEN BY VOTERS WHO CAST DISPUTED BALLOTS
Some disenfranchised voters in House district 55 provided affidavits for Koether's lawsuit, spoke publicly about having their votes not counted, or traveled to Des Moines in January to watch the legislative debate on the election contest.
But none ever filed suit to challenge the Winneshiek County auditor's exclusion of their ballots.
The Iowa Constitution preserves the fundamental right to vote. Under Iowa Code 53.17(2), absentee ballots can be counted if the envelopes are “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.” Although the disputed ballots lacked a traditional postmark, a barcode sprayed on the envelopes allowed the postal service to determine voters had mailed them on or before November 5.
State law does not define "intelligent mail barcode." Republicans claimed their hands were tied by an administrative rule indicating that only barcodes county auditors order before the election qualify as "intelligent mail barcodes."
A fundamental constitutional right cannot be curtailed in the absence of a compelling state interest. As Bleeding Heartland previously noted,
Republicans love to posture as constitutionalists, yet here they claim 29 Iowa voters should be silenced because of an administrative rule. The law’s intent is to prevent voters from cheating by mailing ballots after election day. We know that didn’t happen. There’s no compelling state interest in tossing out ballots because the envelopes had the wrong kind of ink confirming when the postal service handled them. Administrative rules from the Secretary of State’s office can’t supersede the constitution.
Democratic State Representative Mary Wolfe put it this way during the final meeting of the House Election Contest Committee.
We’ve got the constitution saying everybody gets to vote as long as they follow the rules. We’ve got a statute saying you’ve got to get it in the mail by the day before the election, we’re going to look at barcodes as one of the ways to prove that you did that. So our argument is that clearly, these 29 ballots meet that criteria.
When dismissing Koether's lawsuit in December, Polk County District Court Judge Scott Beattie found the Democratic candidate's proper remedy was an election contest to be tried in the Iowa House. But he hinted in a footnote that a court would have considered a case brought by voters. (emphasis added)
While there are undoubtedly situations in which a court may become involved in an election issue, those circumstances involve a party asserting the violation of the constitutional right vis-à-vis a vote contest. The Iowa Supreme Court has held that “Iowa courts have power to adjudicate substantial claims of deprivation of federal or Iowa constitutional rights by the Houses of the Iowa General Assembly in the exercise of the Houses’ election contest powers under section 7, Article III, of the Iowa Constitution.” Luse v. Wray, 254 N.W. 324, 328 (Iowa 1977). In this case, the Plaintiff is not asserting a constitutional right and the allegedly disenfranchised voters are not before the Court. As such, the limited exceptions that would allow the Court to intervene in an election are not present.
The 29 voters and Koether both wanted the disputed ballots counted, but they didn't have the same standing to make that happen through litigation.
Filing a lawsuit can be complicated and expensive, so it's easy to understand why a person might prefer to provide an affidavit for the Democratic candidate's bid to have all legally cast votes tallied. Unfortunately, by not bringing their own case, the Winneshiek voters lost their chance to have a court consider whether current practices of county auditors violated their constitutional right.
Unless the Iowa legislature changes the law on which late-arriving ballots can be counted, or the Secretary of State's office changes the administrative rule on intelligent mail barcodes, more Iowans who mail absentee ballots on time will be disenfranchised in future elections.
Equally disturbing, Republicans will never have to answer in court for failing to honor due process when considering the House district 55 election contest. Under the law, Koether was entitled to call witnesses and have those 29 ballots opened--even if GOP lawmakers later voted to ignore the testimony and the markings on the ballots.
This outcome sets a bad precedent for democracy.
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.