Democratic candidate Kayla Koether filed notice late last week that she is contesting the Iowa House district 55 election. According to the certified result following a recount, Republican State Representative Michael Bergan received 6,924 votes to 6,915 for Koether. However, 29 absentee ballots from Winneshiek County were never tallied, even though the U.S. Postal Service confirmed that they were mailed on or before the legal deadline.

Koether had hoped Polk County District Court Judge Scott Beattie would order the disputed ballots to be opened and counted. But on December 20 he dismissed her lawsuit on jurisdictional grounds, saying the state constitution and Iowa Code give the legislative branch–not the courts–power to rule on contests of elections for state House or Senate seats.

A few thoughts on what should happen next, what will happen instead, and what might have happened if Democrats had pursued a different legal strategy.

WHAT SHOULD HAPPEN

Judge Beattie’s dismissal order, enclosed in full below, stated,

The Plaintiff clearly has a recourse to resolve her complaint. Through the process set out in Iowa Code §§ 57 and 59, the Plaintiff can contest the election with the House and seek the relief she requests. Specifically, Iowa Code § 57.1 gives “any eligible person who received votes for” an office the ability to contest an election. Iowa Code § 57.1 (2018). In order to start this process, the Plaintiff need only serve on the other candidate, and file with the Secretary of State, a notice of contest which allege “the fact or facts, believed to be true by the contestant which, if true, would alter the outcome of the election.” Iowa Code § 59.1 (2018). The Iowa House of Representatives (or a committee of its representatives), will sit as a “contest court” and hear the matter. Furthermore, 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).

The 29 absentee ballots mailed before election day could contain enough votes for Koether to overtake Bergan. The Democrat’s formal statement of contest is asking for those ballots to be opened and counted, and also for another canvass of the House district 55 election, “including all validly cast ballots.” Koether said in a December 21 written statement,

There are at least 29 Northeast Iowans who cast their ballots on time- in good faith- and followed the law, yet elections officials have refused to count their votes. We will follow Judge Beattie’s recommended course of action and stand with Northeast Iowa voters to protect their voting rights in an election contest. Ensuring that all legal votes are counted is foundational to our democracy and to our faith in our elections. We will always fight to maintain the rights not only of these voters, but of all Iowans.

Iowa Code Chapter 59 is vague on how a legislative chamber functions as a contest court. All House members could preside, or a smaller committee could handle the proceeding, as happened when a candidate contested an Iowa House election in 1975.

The fair solution would be for the contest committee to count all validly cast ballots in this race, after which lawmakers would certify the person who received more votes as the next representative for House district 55.

Bergan should demand that course, if he has any self-respect. Who wants to win by disenfranchising some of his own constituents? Anyway, there’s a good chance he would still be ahead after counting all the votes. Koether would need two-thirds of the disputed ballots.

But remember, Republicans will outnumber Democrats when new state representatives take office next month. Depending on whether Bergan is seated pending the contest, the GOP will hold 53 or 54 Iowa House seats, while Democrats will hold 46 seats.

WHAT WILL HAPPEN

Iowa Code Chapter 59 doesn’t say state House or Senate members must declare the candidate who receives more votes the winner of an election. They can resolve a contest however they like. So when the Iowa House considers this matter, Speaker Linda Upmeyer and her leadership team will likely instruct Republicans to disregard the 29 ballots. Whether all House members vote or the chamber appoints a special committee, Republicans will control the process.

The 1975 Iowa House election contest illustrates how the majority can toss out ballots on a technicality, even when voters did nothing wrong. Three Democratic lawmakers and two Republicans served on the contest committee, reflecting Democratic control of the chamber at that time (see page 89 of the House Journal for that year). The committee was initially inclined to declare the seat vacant, forcing a special election, but that solution was “labeled as unacceptable by all parties affected.”

Eventually the three Democrats found in favor of the Democrat who had challenged the 1974 election result. He argued that the Plymouth County auditor’s office erred in how it sent several dozen ballots to nursing home residents. The Republicans on the panel made a compelling case for counting those votes: there was no alleged fraud, and the auditor’s minor violation did not affect citizens’ ability to lawfully fill out and return the ballots. I’ve enclosed the committee and minority reports at the end of this post. UPDATE: The full Iowa House also voted mostly along party lines to adopt the election contest committee report and seat the Democrat. Added below those roll call votes, along with a few speeches by House Republicans who blasted the decision.

The key point is that the strong legal arguments the minority party raised during the 1975 contest did not prevail. The party in power exercised that power to secure an additional Iowa House seat. Excluding the disputed ballots cast by nursing home residents, the Democrat finished seven votes ahead.

Iowa Code Chapter 57.5 gives Koether the right to “have the ballots opened, and all errors of the precinct election officials in counting or refusing to count the ballots corrected by such court or tribunal.” But Republicans including Secretary of State Paul Pate maintain Winneshiek County Auditor Ben Steines properly rejected the 29 ballots, because the envelopes didn’t have the right kind of postmark. They cite an administrative rule that defines “intelligent mail barcode” as a specific tracing method county auditors can use for absentee ballots, with advance notice to the Secretary of State’s office. That didn’t happen in Winneshiek County.

House Republicans–either the whole caucus, or the members serving on the contest committee–may try to block Koether’s request, saying local election officials made no “errors” in not counting the ballots.

Alternatively, suppose Republicans can’t prevent the 29 ballots from being opened and read, and those ballots show a net gain of ten or more votes for Koether (enough to surpass Bergan). GOP lawmakers could still certify Bergan as the winner, saying the Winneshiek auditor made no error in refusing to count ballots with the wrong kind of barcode.

Four or more GOP lawmakers could torpedo this undemocratic approach, if the whole House considers the contest, as happened in 1975 when the committee report came to a floor vote. But I wouldn’t bank on more than one or two of them standing up to the speaker and allowing a colleague to lose his seat.

Bergan hasn’t called for honoring the rights of 29 constituents who mailed their ballots on time. He seems content to stay in power, with or without the legitimacy that comes from gaining more votes than one’s opponent.

Though Koether could file suit in district court if Republicans denied her victory under those circumstances, the outcome might be the same as in Judge Beattie’s order: “The right and responsibility to rule on an election contest has been constitutionally given to the legislature and pursuant to Article III section 1 of the Iowa Constitution, the judicial branch should not interject itself in this matter.”

There was another way to approach this case.

THE LAWSUIT NOT FILED

Watching this process unfold, the most infuriating part has been Republicans insisting that eligible voters should be disenfranchised because ballots they mailed on time, following state law, didn’t get the right kind of mark at the post office.

Article II of Iowa’s constitution protects the right to vote. Federal and state courts have repeatedly held that the right to vote is fundamental.

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.” These 29 ballots meet those conditions. Although they lacked a traditional postmark (envelopes containing ballots are too thick for that), they had a barcode showing voters had mailed them on or before November 5.

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.

Why hasn’t the Polk County District Court ordered that the ballots be counted on those grounds?

I direct you to the ominous footnote on page 7 of Judge Beattie’s ruling. (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.

I commented last month, “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.”

Koether did file suit on November 29. Her filing alluded to the fact that “The thirty-three voters have a constitutional right to have their votes counted if they were returned in accordance with the deadline set out in Iowa law,” but didn’t assert that state law or administrative rules relating to intelligent mail barcodes were unconstitutional.

None of the affected Winneshiek County voters joined Koether as a plaintiff in her suit, and none sued separately claiming their constitutional rights were violated. If they had done so, courts would have considered whether statutory language or administrative rules on intelligent mail barcodes can justify rejecting a ballot that an eligible Iowa voter cast on time. Eventually, the Iowa Supreme Court might have set an important precedent.

Ideally, voters would have filed suit before the election was certified. The county auditor violated their rights when he refused to tally their votes, without even asking the post office to try to determine when they mailed their ballots. That damage was done by December 3.

Perhaps a voter could file a new lawsuit after the contest, or join Koether as a plaintiff. But a court might hold that voters lack standing to challenge the Iowa House action, and/or that it is too late to raise new constitutional arguments about decisions election officials made in November.

I welcome feedback from attorneys or other readers who know more about relevant case law. Feel free to contact me confidentially if you prefer not to post a public comment here.

UPDATE/CORRECTION: Former Republican State Representative Darrell Hanson informed me that 1975 was not the last time the Iowa House considered a contest for a legislative seat.

In 1981 the full House voted to seat Jim Johnson when Larry Dinger contested his election. The official count was close (less than 50 vote margin) but a reasonable case could be made that the vote in that race from one precinct had been misrecorded. (As I recall there was an anomaly that looked like a digit in Dinger’s vote could have been inadvertently dropped, such as 168 being recorded as 68.) Dinger requested a recount and hand delivered the required notice to Johnson’s farm just before the deadline. Johnson wasn’t home so he gave the notice to Johnson’s wife. The Code at the time stated that the notice had to be delivered to the candidate, so Johnson & the GOP HQ attorney claimed that the notice hadn’t been properly served and no recount was required. Johnson could still have voluntarily agreed to a recount, but he refused. The contest ended up being decided by the House, which voted on a party line vote to seat Johnson on the grounds that the request for a recount was invalid. When I retired from the House in 1994, I said in a newspaper interview that the vote on that 1981 contest election was the only vote I ever cast that I knew was wrong at the time of the vote.

Appendix 1: Polk County District Court Judge Scott Beattie’s December 20 ruling, dismissing Kayla Koether’s lawsuit

Appendix 2: Koether’s statement of election contest

Appendix 3: State’s motion to dismiss Koether’s lawsuit on jurisdictional grounds

Appendix 4: Reports submitted by the Election Contest Committee that considered a disputed Iowa House race in 1975. The three Democrats on the committee found in favor of the Democrat who sought to exclude several dozen absentee ballots. The two Republicans on the committee submitted a minority report explaining why the ballots should have remained part of the official vote tally. I created this pdf file from the House Journal for May 12, 1975.

Appendix 5: Iowa House votes from May 15, 1975 on the election contest for House district 2

Appendix 6: Speeches by House Republican lawmakers against the majority report for the 1975 election contest committee: