There must have been a better way

Everyone knew Iowa’s State Canvassing Board wouldn’t have the final word on the 2020 election in the second Congressional district when it certified a six-vote win for Republican Mariannette Miller-Meeks on November 30. Most politics watchers expected Democratic candidate Rita Hart to file for an election contest.

Instead, the Hart campaign announced on December 2 that it will bypass Iowa’s process and appeal directly to the Democratic-controlled U.S. House.

This won’t end well.

“THE NEED TO COUNT ALL VOTES CAST”

A Hart campaign news release said the move reflected “the need to count all votes cast in the Second District, including legally cast ballots that were not considered in the state recount process, which far outnumber the number of ballots needed to change the outcome of the election.” It cited “significant errors in the counting process”:

  • On November 6, Secretary of State Paul Pate announced a significant over-reporting error in Jasper County, triggering a county-wide recount.
  • Then, on November 10, Pate announced yet another reporting error, this time involving under-reported votes in Lucas County.
  • On November 23, the recount board in Jasper County conducted a machine recount that netted 9 votes for Rita Hart. However, at the urging of the Miller-Meeks campaign, the recount board conducted yet another recount on November 25 that netted just one vote for Rita.
  • Many counties did not fully review ballots to identify valid votes that the machines did not recognize, in part because of the time and burden that would have been required for such a thorough count.
  • Once the initial district-wide canvass was completed on November 12, the gap between the two candidates was 47 votes. After the state recount process, the margin has narrowed further to just 6 votes — making this the closest federal race since 1984. More Iowans’ votes were counted after the state recount process, but time constraints and a lack of standard rules prevented all votes from being counted. The Federal Contested Elections Act petition will ensure that more Iowans’ votes are counted.

    Campaign manager Zach Meunier didn’t respond to follow-up questions about how many ballots “were not counted on Election Night despite being legally cast” or why those ballots were not tabulated. UPDATE: According to a statement the campaign released on December 4, “There are a minimum of thirty overseas and military ballots that were not counted due to a scanning error,” and “at least two curbside ballots” in Scott County “that were not counted on Election Night due to errors by poll workers despite being legally cast.” The statement continued, “Because Iowa law precludes any uncounted ballots – even if left uncounted in error – to be included in a state recount, an election contest is the only way to ensure these legitimate votes are counted.”

    Scott County, the largest in IA-02 and one of four Hart carried, had a discrepancy in absentee ballot totals and was among the counties where the recount board didn’t examine all of the undervotes after conducting a machine recount.

    Federal law allows candidates to file a petition with the House Committee on Administration, but it’s customary to exhaust all in-state remedies first.

    With a six-vote margin (less than one-hundredth of a percent), a review of possibly uncounted votes is clearly warranted. But why not file an election contest, as state law allows when “Any error in any board of canvassers in counting the votes, or in declaring the result of the election, […] would affect the result”?

    The problem has been lurking in the Iowa Code for 50 years.

    AN UNREALISTIC TIME FRAME

    The presiding court for a contested Congressional race would consist of Iowa Supreme Court chief Justice Susan Christensen and four District Court judges. In theory, five Iowa judges are more than capable of evaluating the claims fairly and ordering disputed ballots to be counted or recounted. But code Section 60.5 doesn’t give them anything like enough time to thoroughly review the evidence.

    The judges would have to be selected, hold an organizational meeting, establish rules for a trial, preside over the trial, and render a final judgment “at least six days before the first Monday after the second Wednesday in December next following.” December 14 is the first Monday after the second Wednesday of this month, so the IA-02 election contest would have to be concluded by December 8. The earliest date Hart could have filed for a contest was November 30, when results were certified.

    I understand why you’d want contests over presidential electors to be resolved before “the first Monday after the second Wednesday in December,” because that’s when the electoral college meets. But I don’t know why Iowa lawmakers decided to leave so little time for contests of Congressional elections. Those can drag on for months in other states, as when Republican Norm Coleman challenged Minnesota’s 2008 U.S. Senate election after Al Franken was certified as the winner. It has taken weeks or months to resolve contested Iowa House elections, most recently in 2019.

    According to Stuart Stromberg, legal counsel for the nonpartisan Legislative Services Agency, Iowa lawmakers made contests of U.S. Senate or House races subject to the compressed time frame in 1970; see section 53 of a wide-ranging election law enacted that year. Up to now, this poorly-conceived code section hasn’t been a problem, because there hasn’t been an extremely close federal race in Iowa during the past 50 years.

    The Hart campaign’s December 2 statement said that “given the short six day timeline allotted for a state elections contest in Iowa and the volume of ballots left to be examined across 24 counties,” filing a petition under the Federal Contested Elections Act would give “enough time for all legally cast ballots to be considered, ensuring Iowans’ votes are accurately counted.” U.S. Representative Dave Loebsack, the Democrat retiring from IA-02 this year, supported Hart’s decision to go straight to Congress, saying “time should not constrain our critical task: ensuring every Iowan who cast their ballot legally has their voice heard.”

    I agree with Loebsack that “All ballots must be reviewed to accurately count voter intent.” But the optics of this move are terrible.

    REPUBLICANS HAVING A FIELD DAY

    The Miller-Meeks campaign’s attorney Alan Ostergren got the ball rolling, saying in a written statement, “Rita Hart has chosen a political process controlled by Nancy Pelosi over a legal process controlled by Iowa judges. All Iowans should be outraged by this decision.”

    Many prominent Republicans piled on. Iowa GOP state party chair Jeff Kaufmann taunted, “Instead of exhausting all legal options here in Iowa, once the votes were counted and she knew she lost, @RitaHartIA immediately ran to Speaker Pelosi to help her steal this seat from Iowans.”

    Secretary of State Paul Pate argued,

    Iowans made their voices heard in record numbers, and in the event of a contested election they deserve to have the contest process decided by Iowa judges. The will of Iowa voters should not be overturned by partisan Washington, D.C. politicians.

    Senators Chuck Grassley and Joni Ernst decried what they called an “insult to Iowa voters and our nonpartisan election process.”

    None of these Republicans acknowledged the impossibility of a contest court conducting a thorough review in six days, of course.

    It wasn’t only Republicans who didn’t like Hart’s tactics. Sarah Ferris and Ally Mutnick reported for Politico,

    The move, the aggressiveness of which has stunned some Democrats, will trigger a rarely used congressional process, which was memorably deployed to settle an election in the mid-1980s. […]

    But some Democrats question the optics of challenging certified election results, as President Donald Trump still refuses to concede and makes baseless claims of widespread election fraud, despite losing by much larger margins than the Iowa race.

    Dave Wasserman, the U.S. House editor for the Cook Political Report, echoed that sentiment. It would be tough for the House to deny or delay seating Miller-Meeks while Democrats “are seeking to drive home the sanctity of states’ certification processes elsewhere,” he tweeted.

    Many commenters in Democratic Twitter circles felt Hart should have gone through every step of the process in Iowa before turning to Congress. I agree.

    WHAT COULD HART HAVE DONE?

    Contesting an election that has been certified is invariably an uphill battle. Hart’s campaign could have taken legal action in some counties while recounts were underway, seeking to force a full hand count of under votes or over votes that could not be read by optical scanning machines.

    Perhaps there was also grounds for litigation last month over what Hart’s campaign called the “legally cast ballots that were not considered in the state recount process, which far outnumber the number of ballots needed to change the outcome of the election.” Without knowing more about those ballots and why they were never counted, it’s hard to say.

    Once the election was certified, I believe Hart should have filed for an election contest, despite the short timeline. The campaign could have limited its claims to matters that could be resolved in a few days. Alternatively, Hart could have sought a broader review. At least then she could demonstrate that the contest court didn’t hear all the testimony or consider all the evidence she tried to bring before it.

    Even if Hart ended up in the same place–appealing to Congress for a full district-wide recount–she would be in a stronger position if she’d tried to plead her case before Iowa judges.

    The Politico article by Ferris and Mutnick previewed how things might proceed now.

    The process for contesting an election with the House is complex. If Hart challenges the results under the Federal Contested Elections Act of 1969, the case would be referred to the House Administration Committee, which could conduct an investigation of its own before making a recommendation to the full House, which would decide by a simple majority vote whom to seat.

    The process that played out under this act after the 1984 election was exceedingly bitter. The Democratic-controlled House under Speaker Tip O’Neill refused to seat Republican Richard McIntyre, even after Indiana’s secretary of state certified McIntyre as the winner over incumbent Rep. Frank McCloskey (D-Ind.). McCloskey objected to what he said was a rushed certification and inconsistent standards for counting ballots, and McIntyre was not seated in the House.

    The nonpartisan General Accounting Office conducted a recount and found McCloskey the winner by four votes. The House voted to seat him, triggering a walkout protest from Republicans. At the time, Democrats had a larger majority and did not need the extra seat as badly as they do now.

    I question whether House Speaker Pelosi will want to put her small majority through this kind of controversy early next year. Republicans would never accept any recount done in Washington as legitimate, no matter how scrupulous the process. The new Congress will need to act quickly on urgent matters like economic stimulus and COVID-19 relief.

    However the IA-02 campaign ends, Iowa legislators should amend state law to allow for meaningful contests of U.S. House or Senate races. If you’re going to demand that disputed elections be settled in Iowa, you have to create conditions for our judges to resolve those contests fairly. Norm Coleman was able to fully litigate his claims about Minnesota’s 2008 Senate race; Franken wasn’t sworn in as that state’s junior senator until eight months after election day.

    UPDATE: Excerpts from the Hart campaign’s statement released December 4.

    THOUSANDS OF BALLOTS REMAIN TO BE COUNTED AND EXAMINED

    While the race has yet to be decided, it is clear that more than enough ballots remain, once counted and examined, to determine the outcome of this race.

    Finally, there are Iowans whose ballots need to be included in the count. There are a minimum of thirty overseas and military ballots that were not counted due to a scanning error. Given the fundamental right of voting, particularly for those serving in uniform and their families, the U.S. House has an obligation to look into this issue and ensure that legally cast votes are counted. In another example of Iowan’s votes not yet being included in the count, in Scott County, there are at least two curbside ballots that were not counted on Election Night due to errors by poll workers despite being legally cast. Because Iowa law precludes any uncounted ballots – even if left uncounted in error – to be included in a state recount, an election contest is the only way to ensure these legitimate votes are counted.

    Because the initial recount was limited in scope due to time and technology, thousands of ballots in several counties went unexamined by Iowans serving on county recount boards, specifically over- and undervotes. In the counties where ballots deemed to be overvotes and undervotes by the machine were examined by board members, more Iowans’ votes were deemed to have been cast correctly and were included in the overall count, resulting in the narrowed margin of a mere six votes. And Rita Hart gained, with these votes helping to cut a 47-vote margin to a 6-vote margin. But not every recount board conducted this review of ballots by hand. As a result, there are thousands of ballots yet to be examined that well outnumber the 6-vote margin in this race. […]

    TIMELINE OF HOUSE ELECTION CONTEST

    In order to officially trigger an election contest in the U.S. House of Representatives, Rita Hart will file a Notice of Contest with the Clerk of the House. This document will outline the reasons for the contest and must be filed by December 30, 2020. The Notice of Contest will contain detailed allegations that, if proven true, would entitle Rita to the office.

    Miller-Meeks will be required to submit an Answer to the Notice by as late as January 29, 2021, or within 30 days of being served with the Notice of Contest.

    The contest is then referred to the Committee on House Administration, whose chairperson appoints a task force of three Committee members to investigate the contest.

    Next, based on the task force’s investigation, the Committee completes a report and accompanying resolution on the final disposition of the contest.

    Finally, after consideration and debate, the full House will vote on the resolution prepared by the Committee.

    _________________

    Appendix 1: Interactive map showing certified vote totals and percentages for Hart, Miller-Meeks, Joe Biden, and Donald Trump in the IA-02 counties. The color scheme reflects the Congressional results; Biden carried only two of these counties (Johnson and Scott). The certified results show Miller-Meeks beating Hart by 196,964 votes to 196,958 (49.91 percent to 49.91 percent).

    County Name

    D Canidate 1 61% 30390
    R Canidate 2 39% 10390

    Hart won with more than 60%

    Hart won with more than 50%

    Miller-Meeks won with more than 50%

    Miller-Meeks won with more than 60%

    Miller-Meeks won with more than 70%

    Appendix 2: County-level certified results in table form, with counties listed in descending order by number of votes cast in the 2020 presidential race.

    Votes for Congress and president in IA-02 counties, 2020
    County Hart votes MMM votes Biden votes Trump votes
    Scott 47,562 (53.0%) 42,046 (46.8%) 46,926 (50.7%) 43,683 (47.2%)
    Johnson 56,129 (69.9%) 24,101 (30.0%) 59,177 (70.6%) 22,925 (27.3%)
    Clinton 12,997 (54.2%) 10,945 (45.6%) 10,812 (43.8%) 13,361 (54.1%)
    Muscatine 9,731 (48.5%) 10,279 (51.3%) 9,372 (43.3%) 10,823 (52.4%)
    Des Moines 9,268 (48.9%) 9,641 (50.8%) 8,893 (44.6%) 10,592 (53.1%)
    Jasper 8,099 (41.9%) 11,181 (57.9%) 7,737 (38.3%) 12,084 (59.9%)
    Marion 6,124 (33.4%) 12,146 (66.3%) 6,178 (32.1%) 12,663 (65.8%)
    Lee 6,969 (43.2%) 9,145 (56.6%) 6,541 (39.1%) 9,773 (58.4%)
    Wapello 6,153 (41.1%) 8,780 (58.7%) 5,821 (37.2%) 9,516 (60.9%)
    Washington 4,650 (41.1%) 6,633 (58.7%) 4,561 (38.8%) 6,971 (59.3%)
    Mahaska 3,076 (28.8%) 7,575 (71.0%) 2,894 (25.4%) 8,297 (72.8%)
    Cedar 4,629 (45.5%) 5,534 (54.4%) 4,337 (40.5%) 6,161 (57.6%)
    Henry 3,607 (38.0%) 5,857 (61.7%) 3,275 (32.8%) 6,507 (65.2%)
    Jefferson 4,374 (50.8%) 4,226 (49.0%) 4,319 (48.2%) 4,443 (49.6%)
    Appanoose 1,952 (32.3%) 4,078 (67.5%) 1,891 (29.0%) 4,512 (69.2%)
    Louisa 1,917 (37.6%) 3,167 (62.2%) 1,726 (32.4%) 3,500 (65.6%)
    Keokuk 1,571 (31.2%) 3,461 (68.7%) 1,414 (26.7%) 3,797 (71.6%)
    Clarke 1,639 (37.6%) 2,712 (62.1%) 1,466 (31.4%) 3,144 (67.3%)
    Lucas 1,297 (30.9%) 2,892 (68.9%) 1,284 (27.7%) 3,287 (71.0%)
    Davis 1,129 (28.7%) 2,795 (71.1%) 1,013 (24.7%) 3,032 (73.9%)
    Monroe 1,203 (31.5%) 2,612 (68.4%) 1,078 (26.4%) 2,975 (72.8%)
    Decatur 1,215 (34.0%) 2,345 (65.7%) 1,120 (29.4%) 2,615 (68.7%)
    Van Buren 941 (25.4%) 2,759 (74.5%) 875 (23.1%) 2,859 (75.4%)
    Wayne 726 (26.1%) 2,050 (73.7%) 727 (23.4%) 2,338 (75.2%)
     
    District-wide 196,958 (49.91%) 196,964 (49.91%) 193,437 (47.0%) 209,858 (51.0%)

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