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Hart Files Appeal With US House, Requesting It Review Six-Vote Margin In 2nd Congressional District

Candidates Rita Hart, D - Wheatland, and Iowa Sen. Mariannette Miller-Meeks, R - Ottumwa, answered questions from reporters and discussed their platforms, concerns and future plans. David Yepsen, host of Iowa Press on Iowa PBS, moderated the debate.
Iowa PBS
Democrat Rita Hart has filed an appeal with the Democratically-controlled U.S. House, challenging her six-vote loss to Republican Mariannette Miller-Meeks in Iowa's 2nd Congressional District.

Democrat Rita Hart has filed an appeal with the U.S. House of Representatives challenging the state’s certification of her opponent Republican Mariannette Miller-Meeks as the winner in Iowa’s 2nd Congressional District race by a margin of just six votes.

Hart’s legal team argues they have identified 22 ballots that were legally cast but not counted, in part due to election worker error. If tallied, the ballots would net Hart 18 votes, according to her campaign, more than enough to give her the lead.

Additionally, Hart's campaign is requesting the House conduct a full recount by hand all of the more than 400,000 ballots cast in the race, arguing that a lack of uniformity in how counties handled undervotes and overvotesduring the previous recount process left scores of ballots uncounted.

“We know there are legally cast ballots in this race that have not been counted. In fact, the state and the Republicans agree that there are legally cast ballots that were not counted as part of the election,” Hart campaign attorney Marc Elias said in a call with reporters. “As the petition that we filed lays out in very specific detail, it is clear that when you count those ballots, which we have identified by name and by number, that Rita will have won this election.”

The filing of the petition with the Committee on House Administration officially begins a review process outlined under a 1969 federal law. In a process which that could take months, lawmakers in the Democratically-controlled chamber can decide how to proceed with Hart’s request, including subpoenaing witnesses, reviewing documents and conducting their own recount of ballots. Under federal law, Miller-Meeks will also be able to make her case.

Hart has faced criticism from Iowa Republicans and some of the state’s newspaper editorial boards for not first appealing to the state's courts. The process outlined under Iowa law would’ve allowed a panel of judges a matter of days to review the ballots, which Hart has called insufficient, arguing that her only remedy for ensuring a full and uniform recount of every vote cast is to appeal to the House.

“Senator Hart has chosen a political process controlled by Nancy Pelosi to overturn the choice of Iowans in the Second Congressional District,” a statement from Miller-Meeks’ campaign reads in part. “This election has been decided by Iowans. That decision should not be thrown into Washington’s hyper-partisan atmosphere. It is shameful that Rita Hart does not have faith in Iowans, and does not respect the decision of Iowa voters.”

Republican leaders at the state and national level have decried Hart's appeal, characterizing it as a "power grab", even as the party's leader, President Donald Trump, refuses to concedehis election loss and pedals baseless claims of voter fraud.

Miller-Meeks’ campaign has 30 days to file a written response to Hart’s filing.

Hart Campaign details 22 ballots that were 'wrongfully excluded'

The petition outlines 22 ballots from Des Moines, Johnson, Marion, Scott and Wapello Counties that the campaign argues were wrongly excluded from the initial canvass due to various errors. The filing details two voters in Scott County who lawfully voted from their cars on Election Day, but whose ballots were erroneously left out of the count because the voting machines wouldn’t accept them.

In Marion County, the campaign details that the recount board identified nine absentee ballots that had been lawfully cast, reviewed and accepted but for some reason had not been included in the initial canvass.

Hart’s legal team backs up these accounts with sworn testimony from the voters, who are identified by name, as well as statements from election officials. In at least one case, Johnson County election officials apologized to a voter who cast a provisional ballot that wasn’t ultimately tallied.

According to the petition, voter Cheyanne Kurth provided the necessary documentation to have her ballot counted, but after she submitted her paperwork to election workers, it somehow became separated from her ballot, preventing staff from identifying which was hers.

“We are very sorry this happened,” Johnson County Auditor Travis Weipert wrote to Kurth, “especially since you did everything you needed to do and should have had your vote counted”.

Other ballots were rejected because the outer envelopes containing the ballots weren’t sealed, though the voters testified that they had properly sealed them before returning their ballots. In another case, a voter signed the outer envelope of their absentee ballot as required, but election workers rejected the ballot because of where on the envelope the voter signed.

Under state law, because these 22 ballots were not included in the initial canvass by the counties, they could not be tallied during the districtwide recount process either. Elias argues this amounts to voter disenfranchisement, which must be corrected.

“When the voter does everything right and complies with the law, their ballot can't be disenfranchised by the later inaction of election officials,” Elias said. “We don't let election official error disenfranchise voters in this country. And we certainly don't do it where the election is decided by six votes and you're able to identify 22 ballots that were affected.”

Hart Campaign argues a full hand recount is needed

Beyond the 22 ballots excluded from the initial canvass, Hart’s legal team argues that the previous districtwide recount, which she requested, ran afoul of Iowa law and the U.S. Constitution because of a lack of uniformity from one county to the next in regards to which ballots were subject to a hand count and examined for voter intent.

Across all 24 counties, there were 19,958 undervotes, 175 overvotes and 703 write-ins, but whether those ballots were examined by hand to reveal a potential vote for Hart or Miller-Meeks depended on how each county recount board decided to proceed.

Voting machines periodically misread ballots with stray marks or an insufficiently colored in bubble, categorizing them as under or overvotes, although the intent of the voter is made clear upon examination by the human eye. But Hart’s legal team argues that “whether a voter’s ballot counted in the recount depended on the county where that ballot was cast," which they say amounts to a violation of the Equal Protection clause.

“Some counties looked at overvotes, some counties didn't. Some counties hand counted undervotes, some counties didn't,” Elias said. “What we're seeking is fairness for both sides, which is a uniform set of rules that will apply to the review of all of these ballots.”

Over the course of the previous districtwide recount, Hart narrowed Miller-Meeks’ lead considerably, from 47 to six. Since election night, the lead has flipped multiple times, after election officials identified and then corrected technical and clerical errors which proved significant in a contest with such a narrow margin.

It’s not clear whether House leadership will swear in Miller-Meeks with the rest of the incoming Congress on Jan. 3. Seating Miller-Meeks would not prevent Hart from taking back the seat if her challenge ultimately proves successful.

In the meantime, Miller-Meeks has said she’s proceeding as if she will take office next month, making preparations for hiring staff and opening district offices.

The race is the closest federal election this cycle and one of the closest congressional races in decades. The outcome of the challenge could impact the margin of Democrats’ slim majority in the House.

Editor's Note: this story was updated at 4:30 pm on Dec. 22.

Kate Payne was an Iowa City-based Reporter