Get ready for an election contest in IA-02

All 24 counties in Iowa’s second Congressional district have recounted their votes, but the race between Democrat Rita Hart and Republican Mariannette Miller-Meeks is far from over.

Trackers including Pat Rynard of Iowa Starting Line and Tom Barton of the Quad-City Times reached the same conclusion: once all counties submit their new numbers to the Iowa Secretary of State’s office, Miller-Meeks will have a six-vote lead out of more than 394,000 ballots cast. Rynard posted vote changes in each county since election day here. The two candidates’ vote share is identical to the one-hundredth of a percent (49.91 percent).

The Miller-Meeks campaign’s lawyer Alan Ostergren declared victory after Clinton County’s recount board finished its work on November 28. The Republican candidate said in a written statement, “While this race is extraordinarily close, I am proud to have won this contest and look forward to being certified as the winner by the state’s Executive Council on Monday.”

Three Republicans (Governor Kim Reynolds, Secretary of State Paul Pate, and Secretary of Agriculture Mike Naig) and two Democrats (State Treasurer Michael Fitzgerald and State Auditor Rob Sand) serve on the Executive Council. Assuming that body certifies the result, an election contest is extremely likely.

CONTEST ALLOWED IF “ANY ERROR” IN VOTE COUNT WOULD AFFECT RESULT

Iowa Code Chapter 57.1 allows anyone who received votes in an election to bring a contest, if one of eight conditions are met. Those include, “Any error in any board of canvassers in counting the votes, or in declaring the result of the election, if the error would affect the result.”

The big question mark surrounds Scott County, containing the Iowa side of the Quad Cities. It’s the largest county in IA-02, where more than 89,500 voters made a choice in the Congressional race. The Iowa Secretary of State’s website still shows the Scott County result after the canvass: 47,457 votes for Hart and 41,967 for Miller-Meeks. But the recount board identified another 105 votes for Hart and 79 for Miller-Meeks, resulting in a net gain of 26 votes for the Democrat.

There are at least two problems with Scott County’s recounted totals.

ABSENTEE BALLOT TOTALS DON’T LINE UP

Barton reported on “a 131-ballot discrepancy between its [the recount board’s] tabulation of the absentee ballots received by the Scott County Auditor and those included in the county’s certified canvass of election results after election day.” The likeliest explanations involve human error: either a batch of 131 ballots was not counted on election night, or the recount board mistakenly counted 131 ballots twice.

Ostergren said on November 25, “The recount of absentee ballots in Scott County was unreliable.” Michael Bousselot, the Miller-Meeks campaign’s representative on the three-member recount board, refused to sign the board’s report, citing “this cloud over it.” By Barton’s account,

The Scott County Attorney’s Office advised that state statute was unclear on the matter, and felt the recount board had broad latitude to decide how it wanted to proceed, according to two people with direct knowledge, but who were not authorized to speak publicly.

Davenport attorney Ian Russell, the Hart campaign’s representative on the recount board, contended it was beyond the scope of the recount board to conduct an audit, and that its task is not to reconcile the recount and canvass of votes. Ultimately, he said it will be up to Scott County Board of Supervisors to decide whether to certify the recount board’s results and send them on to the Iowa Secretary of State for statewide certification on Monday [November 30].

“I know it’s unfortunate,” Russell said. “This is not what any of us wanted to happen, but the statute is clear that the recount board recounts the ballots. … It doesn’t try to audit them and compare them. If there’s a discrepancy … there’s a remedy for that” through the courts.

Rarely do I agree with Bousselot, but it’s hard to argue for certifying a result when you don’t know what happened with 131 ballots. On the other hand, Iowa law sets a deadline for counties to complete a recount. Arguably there was no time to start over in Scott County and finish the recount by November 28.

UNDER VOTES NOT EXAMINED BY HAND?

A second red flag emerged in Zachary Oren Smith’s reporting for the Iowa City Press-Citizen on November 23.

The Scott County Recount Board in a 2:1 decision, with Miller-Meek’s representative in the dissent, adopted a machine-assisted hand count to count absentee ballots. The 64,052 absentee ballots held in 22 tubs in the auditor’s office were run through the machine which tabulated votes for Miller-Meeks and Hart and sorted out overcounts and write-ins. This did not include undervotes.

“(T)here are thousands of undervotes registered by the machine that never received a second look. That’s the double standard. If you filled in two ovals on your absentee, then the board reviewed it by hand. But if you mistakenly didn’t fill in the oval darkly enough, there is an undeniable chance that the vote was sorted in as an undervote and never given the hand review by the board,” [Miller-Meeks campaign spokesperson Eric] Woolson wrote in response to questions from the Press-Citizen.

I have no idea why the recount board would choose to examine the “over votes” (ballots on which an optical scanner detected marks for more than one candidate) and write-ins but not the “under votes” (ballots on which the machine didn’t detect a vote for any Congressional candidate).

Every ballot the scanner recorded as an under vote should be reviewed by hand. Although many voters do skip certain races, sometimes the voter’s intent can be discerned–for instance if a person marked an “X” by a candidate’s name, instead of filling out the oval completely. According to Barton’s latest article for the Quad-City Times, there were about 3,400 under votes in Scott County. UPDATE: A source familiar with the recount says that ballots with a partial mark in the oval were reviewed by hand. The 3,400 under votes not further examined had no mark within the ovals next to Hart’s or Miller-Meeks’ names.

HART CAMPAIGN REVIEWING ITS OPTIONS

Scott County Auditor Roxanna Moritz speculated on November 25 that there’s a 95 percent chance this race will go to an election contest. I agree. Hart’s campaign should have no trouble demonstrating enough doubt about Scott County’s totals to meet Iowa’s legal standard for bringing a contest (“Any error in any board of canvassers in counting the votes […] if the error would affect the result”).

Iowa Code 57.5 grants “parties to any contested election” the right “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 best solution would be to re-examine every ballot in Scott County, including all under votes as well as over votes and write-ins.

The Hart campaign didn’t tip its hand in a statement from campaign manager Zach Meunier, released on November 28:

“When we began this recount Rita Hart was down by 47 votes. As more ballots have been counted, the margin has narrowed dramatically and is now down to a mere 6 votes — making this the closest Congressional race in recent history, and one of the very closest in the last hundred years.

Unfortunately, as this process continues, the Miller-Meeks campaign has sought to keep legitimate votes from being counted — pushing to disqualify and limit the number of Iowans whose votes are counted.

We have said from the beginning of this recount process that the most important thing is that Iowans’ voices are heard and their votes are counted fairly. Moreover, under Iowa law, the recount was limited to the universe of ballots initially counted after Election Day. We will closely review what the county and state boards do on Monday with an eye toward making sure all Iowa voices are fully and fairly heard.”

I wouldn’t bet on a representative from IA-02 being seated when new members of Congress are sworn in the first week of January. Under the U.S. Constitution (Article I, Section 5, Clause 1), the U.S. House of Representatives or Senate “may order its own recount of the votes cast” in an election to the relevant chamber. Martin Gold and Ronald Welch noted in an analysis of that section of the constitution that “Legislative recounts can be bitterly partisan” and “are immune from judicial review.”

With Democrats retaining a small majority in the lower chamber of Congress, there is a realistic chance of a federally-ordered recount of the IA-02 race, if Iowa certifies Miller-Meeks as the winner by a single-digit vote margin and an election contest doesn’t change the outcome.

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