DES MOINES — A contested Northeast Iowa Statehouse race will go to the full House next week to decide — likely with the recommendation that 29 mail-in ballots that could tip the election in favor of the Democratic rival not be counted.
Majority Republicans have taken the position that legislators have no legal authority to open and count those ballots because they arrived in the mail without postmarks required by law.
A committee appointed to hear the challenge from a Democratic candidate in House District 55 is expected to approve a recommendation Thursday that the full House accept the outcome as it stands, without counting those disputed ballots. House floor action is expected next week.
Last week, the five-member panel heard arguments from attorneys representing Democratic challenger Kayla Koether of Decorah and Republican Rep. Michael Bergan of Dorchester. Bergan has been declared the winner of the Nov. 6, 2018, election by nine votes in the district that includes all or parts of Winneshiek, Fayette and Clayton counties.
To be counted, said Rep. Steve Holt, R-Denison, a mail-in absentee ballot must have a traditional postmark or what Iowa law calls an intelligent mail bar code generated by an auditor’s office. The ballots received by the Winneshiek County auditor had neither.
Koether and House Democrats say the postal service, using its own bar code, has verified the ballots were mailed in time to be counted.
“We have to follow the law,” Holt said. “That’s why we have the law. We have a specific Election Day. We have procedures for which absentee ballots have to be received. They have to be signed. They have to be sealed. All of these things so we can maintain the integrity of the election process.”
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However, Democrats on the committee argued Wednesday that those 29 voters will be disenfranchised if their ballots are not counted.
Although Republicans say they are following the law, Rep. Mary Wolfe, D-Clinton, said the constitution is the “ultimate decider of what is or isn’t consistent with the rule of law.”
The Iowa Constitution gives citizens a fundamental right to have their votes counted, she said, maintaining that Iowa law says if there’s a bar code that shows a ballot was mailed on time it is a legal ballot.
“When you get all the way down to administrative rules, which is about as low as you can go in the hierarchy of the rule of law, that’s what they’re depending on,” Wolfe said. “Under the rule of law they absolutely have the right to have their votes counted.”
If the House votes to uphold the election results, Wolfe and Rep. Brian Meyer of Des Moines, the other Democrat on the committee hearing the challenge, anticipate someone — perhaps Koether or one of the 29 voters whose ballots have not been counted — will take the issue to court, perhaps citing a violation of due process.
Before the House took up the issue in the unusual hearing, a Polk County District Court judge ruled in a court challenge brought by Koether that the matter should be settled according to House rules.
But “obviously, we’re not seeing justice done here,” Wolfe said. “It looks like 29 Iowa citizens who did everything right … for some reason their votes aren’t going to count. That’s just wrong.”
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