Judge weighs legality of ballots in House 55 race

DES MOINES - An Iowa judge plans to say soon whether he will dismiss a lawsuit that asks a county auditor to count 29 absentee ballots in a state legislative race that was decided by nine votes.

Judge Scott Beattie on Thursday afternoon heard arguments on a series of motions, including one to dismiss the case.

Beattie had expected to deliver a written ruling Thursday evening, but no ruling had been filed by 9 p.m.

Republican Michael Bergan defeated Democrat Kayla Koether by nine votes in the race for an Iowa House district in northeast Iowa.

Koether is claiming 29 absentee ballots that were not counted should be counted because they include an electronic bar code that shows the ballots were mailed by the deadline.

But Winneshiek County Auditor Ben Steines and Iowa Secretary of State Paul Pate, both Republicans, say the ballots should not be counted because the bar codes are not the kind used by county auditors to authenticate ballots.

Steines and Pate have asked Beattie to dismiss the lawsuit.

Beattie also is considering motions to move the case from Polk County to Winneshiek County and to provide further information about the uncounted ballots to Koether's attorneys.

Pate's attorney argued the judge does not have jurisdiction over whether the ballots should be counted. The attorney argued state law says challenges to election results must be filed with the Iowa House of Representatives.

Koether's attorney argued the county auditor should be ordered to count the ballots.

'This is not partisan,” said Shayla McCormally, Koether's attorney. 'There's Republican votes in there. There are votes we are sure that don't vote for Kayla. They should be counted. They have the right to be counted.”

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