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State Government News

House Republican: We Can't Count 29 Ballots In Contested HD 55 Race

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John Pemble/IPR
Rep. Steven Holt, R-Denison, says House lawmakers do not have the legal authority to open and count 29 ballots that were tossed out in a northeast Iowa legislative race. The county auditor has testified the ballots were mailed on time.

Republican state lawmakers say they don’t have the legal authority to count 29 ballots that were tossed out in a contested northeast Iowa race. A legislative committee plans to make that recommendation to the full House, which has the final say in the District 55 race. Republican incumbent Michael Bergan beat Democratic challenger Kayla Koether by a nine vote margin in the contest, meaning the 29 ballots could change the outcome.

The chairman of the GOP-led election contest committee says the 29 mail-in ballots don’t have the specific postmarks allowed under state law. The ballots arrived at the Winneshiek County Auditor's Office after Election Day and lacked a conventional postmark, raising questions about whether they could be verified and spurring Auditor Ben Steines to toss them out.

In order to verify votes that come in after Election Day, state law directs county auditors to rely on a conventional postmark. They also have the option to use what's called an intelligent mail barcode, a special system run by the postal service.

"I think the legislative intent I very clear, and the Iowa code is very clear and the administrative code is very clear. We lack the legal authority to open those ballots and count them because those 29 ballots did not have an intelligent mail barcode." - Rep. Steven Holt, R-Denison

Rep. Steven Holt, R-Denison, chairs the election contest committee and says the question of whether to open and count the ballots hinges on what qualifies as an intelligent mail barcode. The term isn't defined in state law.

“It really came down to what the definition of intelligent mail barcode is," Holt said. "I think the legislative intent is very clear, and the Iowa code is very clear and the administrative code is very clear. We lack the legal authority to open those ballots and count them because those 29 ballots did not have an intelligent mail barcode, which is required by law.”

While the ballots do feature other barcodes with postal tracking information, Holt says that information isn't legally usable. According to the postal service, mailers (i.e. county auditors) must actively subscribe to the intelligent mail barcode system, which allows them to stamp their mail with specific tracking information before they send it out. According to the Iowa secretary of state's office, only a minority of counties have signed up for this optional program and Winneshiek County is not one of them.

"It is something that must be purchased by the auditor. It is on the envelope before it leaves the auditor’s office," Holt said. "These were barcodes sprayed on by the post office. They were not intelligent mail barcodes. We lack the legal authority to open these ballots."

Holt's committee of three Republicans and two Democrats is scheduled to meet Thursday afternoon, and is expected to advance a recommendation to not count the ballots on a party-line vote.

That would be a blow for House Democrats and for Democratic challenger Kayla Koether, who argues she has the right to have the votes tallied. Auditor Steines testified in a court filing that postal workers were able to verify the 29 ballots were mailed on time, using the other barcodes printed on the ballots.

"Anything less than counting the ballots is a violation of these people's constitutional rights to have their votes counted." - Rep. Brian Meyer, D-Des Moines

House Democrats argue it's unconstitutional to not count ballots that were legally cast. Rep. Brian Meyer, D-Des Moines, sits on the election contest committee.

"Anything less than counting the ballots is a violation of these people's constitutional rights to have their votes counted," Meyer said.

A statement posted to Koether's Twitter account Wednesday says the issue isn't about the outcome of the vote tally.

"We hoped that this committee would contemplate the matter before them conscientiously & thoroughly. After all, voting is the bedrock of our democracy," the statement reads in part. "This is not a partisan issue & shouldn't be treated like one."

Democrats argue that Republicans' not taking evidence or witness testimony in the committee process runs afoul of due process, and the inconsistent counting of votes based on counties' intelligent mail barcode capabilites may violate the equal protection clause.

On Wednesday afternoon, Democrats said another legal challenge is possible, and that the issue is "appealable", especially if the complaint is brought by one of the impacted voters. 

Rep. Mary Lynn Wolfe, D-Clinton, also sits on the committee and says she thinks state law in this area is flawed and should be amended. 

"For some reason their votes aren't going to count. That's just wrong," Wolfe said. "So whatever we have to do to make sure that never happens again."