Judge Orders County Officials To Re-Examine Nullified Ballots In HD 55

Dec 3, 2018

Democrats have cleared an initial hurdle in a legal challenge over the state’s closest legislative race. Local elections officials will take another look at ballots tossed out in northeast Iowa’s House District 55 race. The candidates are separated by nine votes, and if a judge ultimately orders the ballots be counted, they could potentially change the outcome of the race.

On Monday a judge ordered the Winneshiek County Auditor to re-examine 33 late-filed, absentee ballots in House District 55. County election workers tossed out the ballots because they came in after Election Day and weren’t postmarked.

"[T]here is no doubt that there is a great public interest in the outcome of the evaluation of the ballots. Failure to read the barcodes could result in ballots that were validly cast being ignored." - Judge Scott J. Beattie

But the ballots do have a barcode, which may contain information on when the envelopes were mailed. County officials and postal workers must review the data by Wednesday, and then report back to the court by Friday.

“[T]here is no doubt that there is a great public interest in the outcome of the evaluation of the ballots. Failure to read the barcodes could result in ballots that were validly cast being ignored,” wrote Judge Scott J. Beattie in an order filed Monday.

Democratic challenger Kayla Koether brought the suit against Republican incumbent Michael Bergan, who leads the race by nine votes. Koether claimed the ruling as an early victory.

“This ruling is good news for the 33 Iowans who cast their ballots in good faith and deserve to have their votes counted. We’re pleased that the judge agreed that getting more information from the U.S. Post Office on the uncounted ballots is essential. This is just the next step in making certain that every legal vote gets counted.” said Koether in a written statement.

The judge has not ruled on whether the ballots should be counted, just that they should be examined and preserved as evidence. More arguments on interpreting the ballots are expected to follow.

"This ruling is good news for the 33 Iowans who cast their ballots in good faith and deserve to have their votes counted [...] This is just the next step in making certain that every legal vote gets counted." - Kayla Koether, Democratic Candidate in HD 55

At issue is whether the barcode data is usable under Iowa Code, which requires mail-in ballots to be officially timestamped to prove they were mailed the day before Election Day. in Iowa Code chapter §53.17(2) reads:

In order for the ballot to be counted, the return envelope must be received in the commissioner’s office before the polls close on election day or be 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.

But state code doesn’t define the term “intelligent mail barcode" system, and the parties disagree on whether the barcode data on the ballots is the intelligent barcode system referred to in state law.

A regional spokeswoman for the U.S. Postal Service says in order to use its intelligent mail barcode system, “a mailer would need to download an encoder, fonts, and computer source code. The mailer would then apply for a mailer identifier through USPS”.

According to the secretary of state’s office, six counties use the intelligent mail barcode system, but Winneshiek County is not one of them. Secretary of State Paul Pate argues the ballots therefore should not be counted.

“Winneshiek County Auditor Ben Steines followed the law. Iowa Code is clear on this matter. Absentee ballots that arrive after Election Day and do not contain postmarks, nor a county-specific Intelligent Mail Barcode, are not eligible to be counted,” Pate said in a written statement.

"Winneshiek County Auditor Ben Steines followed the law. Iowa Code is clear on this matter." - Iowa Secretary of State Paul Pate

Koether argues 29 of the ballots arrived at the Winneshiek County Auditor's office on November 7th, the day after Election Day, meaning they likely were mailed in time, due to an average of a two day processing and shipping time through the Waterloo Post Office. Koether hopes to argue the barcodes are valid and the votes should be counted, once any timestamp data from the ballots has been reviewed and preserved.

The outcome of the race will not impact partisan control of the Iowa House.

According to state data, a midterm record high of 547,205 Iowans voted by absentee in November. The postmark on their ballot or lack thereof did not affect many of these voters, whose mail-in votes were processed ahead of the state's deadline.