Iowa House Speaker Linda Upmeyer confirmed on January 9 that a special committee will consider Kayla Koether’s contest of the House district 55 election. According to the certified results, Republican State Representative Michael Bergan leads Koether by nine votes, 6,924 to 6,915. Koether is fighting to have 29 uncounted absentee ballots from Winneshiek County opened and tallied, in light of evidence from the U.S. Postal Service that voters mailed those ballots by the legal deadline.
Last month, a Polk County District Court judge dismissed Koether’s lawsuit related to the case, writing in part,
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 Iowa Code provisions governing contests of legislative elections can be found here and here. As Upmeyer noted yesterday, the law doesn’t specify how the “contest court” will function. House leaders will appoint the committee members soon after the legislature convenes for its 2019 session on January 14.
What should happen:
1. The committee should supervise a count of all validly cast ballots in this race, including the 29 Winneshiek County ballots that were never counted, even though voters mailed them on or before the day prior to the November election.
2. The committee should recommend seating whoever is ahead after all validly cast ballots in House district 55 have been counted.
3. If the result ends in a tie (that is, the 29 disputed ballots show nineteen votes for Koether and ten for Bergan, and nothing else changes during the count), the committee should recommend following the Iowa Code provision for drawing lots to determine a winner in case of a tied election.
Bergan has not responded to requests for comment on whether he supports counting all of his constituents’ votes, or whether he believes 29 eligible voters should be disenfranchised because the envelopes on their absentee ballots had the wrong kind of barcode.
State law gives legislative chambers a nearly free hand in how they resolve election contests. If past experience is any guide, the Republican-controlled special committee will recommend keeping Bergan in office, even if counting the 29 disputed ballots would put Koether ahead, and Iowa House members will eventually vote along party lines to accept the committee report.
Assuming Bergan remains in the House, Republicans will hold 54 of the chamber’s 100 seats. If Koether overturns the result, the GOP majority would be 53-47.
JANUARY 14 UPDATE: Three Republicans and two Democrats will serve on the Contested Election Committee: Steven Holt (R), Jon Jacobsen (R), Matt Windschitl (R), Brian Meyer (D), and Mary Wolfe (D). The committee will hold an organizational meeting on January 14, and members will make opening statements at the next meeting on January 16.