House Lawmakers Consider Legal Arguments In Case Of Uncounted Ballots

Jan 16, 2019

Iowa House lawmakers heard oral arguments Wednesday in the ongoing case of a disputed statehouse race. At issue is whether a special committee of representatives will count 29 mail-in ballots that were left out of the vote tally because they arrived after Election Day without a typical postmark. A central question is whether a timestamp used to date the ballots is usable under Iowa law.

Much of the legal arguments Wednesday pivoted around what constitutes an intelligent mail barcode under state law. County auditors can use the system to verify when a mail-in ballot was cast but the term is not expressly defined.

In the House District 55 race, which was decided on a nine vote margin, whether the ballots are included could change who represents the northeast Iowa district, though the outcome would not change the balance of power in the chamber.

A House committee led by three Republicans and two Democrats is weighing the challenge, which was brought by Democratic challenger Kayla Koether against Republican incumbent Michael Bergan of Dorchester, after a district judge threw out her case.

"Winneshiek County is not set up for and does not use intelligent mail barcoding to trace the date that a ballot is sent. The late-received ballots without postmarks were lawfully rejected." - Matthew McDermott, attorney for Rep. Michael Bergan, R-Dorchester

Winneshiek County Auditor Ben Steines has testified the 29 ballots were mailed to his office on time. According to Steines’ statements, postal workers made the determination by scanning a barcode on the ballots conducted, a step ordered by District Judge Scott J. Beattie. The ballots lack a conventional postmark that auditors typically rely on, but do feature other barcodes.

Under a state law passed in 2016, auditors are allowed to use a U.S. Postal System technology known as intelligent mail barcodes to verify ballots, but the vast majority of county auditors don’t have the capability to do so, including Winneshiek County. Additionally, Iowa Code does not expressly define intelligent mail barcode, putting the question at the center of the contested election for House District 55.

The lawyer for Bergan, Matthew McDermott, argues the codes on the 29 ballots do not qualify as intelligent mail barcodes, and should not be counted.

“A barcode is not a barcode is not a barcode,” McDermott said.

According to the U.S. Postal Service, a mailer must file an application and request a subscription in order to use the intelligent mail barcode system, which Winneshiek County has not done. McDermott says the ballots therefore should not be counted.

“Winneshiek County is not set up for and does not use intelligent mail barcoding to trace the date that a ballot is sent. The late-received ballots without postmarks were lawfully rejected,” he said.

"Ms. Koether has a right to request that this body have the ballots brought down here by their custodian and opened. Her rights are secured by the Iowa Law and the Iowa Constitution. To ignore these rights violates her due process rights." - Shayla McCormally, lawyer for Kayla Koether

The lawyer for Koether, Shayla McCormally, argues state law doesn’t define the term intelligent mail barcode, and that the barcodes that were printed on the 29 ballots should be usable.

“Nowhere in Iowa Code is intelligent mail barcode defined,” McCormally said. “When a definition is not provided in the Iowa Code, we have to look at plain meaning.”

McCormally argues the dating information gleaned from the envelopes is sufficient to confirm the ballots were mailed on time, and that it would be a violation of Koether’s 14th Amendment due process rights to not count the votes.

“Ms. Koether has a right to request that this body have the ballots brought down here by their custodian and opened,” McCormally said. “Her rights are secured by the Iowa Law and the Iowa Constitution. To ignore these rights violates her due process rights.”

"We've had a lot of talk today about the fundamental right to vote and those issues. And that is why this is so difficult for all of us, Democrat or Republican sitting on this committee." - Rep. Steven Holt, R-Denison

The process for handling a contested election in the general assembly isn’t specifically articulated in state law, leaving it largely up to chamber leaders. The House committee is determining what the next step in the challenge should be.

Republican lawmakers say they must settle the issue of defining intelligent mail barcode first. That determination could render the rest of the issues in the case moot. But Democratic members of the committee hope to ultimately hear from witnesses first hand, including county auditors and postal workers, and see the ballots for themselves.

“We all know they were mailed on time,” said Ranking Member Mary Lynn Wolfe, D-Clinton. “So I’m looking forward to seeing and hearing more evidence about that hopefully in the future."

But overshadowing the technical deliberations and the legal argumentation is the question of whether the ballots of 29 Iowa voters should be counted or not.

“We’ve had a lot of talk today about the fundamental right to vote and those issues,” said committee chair Steven Holt, R-Denison. “And that is why this is so difficult for all of us, Democrat or Republican sitting on this committee.”