By Thomas Nelson and Jeff Reinitz, Waterloo-Cedar Falls Courier
DECORAH — In a rare move, the outcome of a Northeast Iowa legislative race that could hinge on whether 29 absentee ballots without postmarks are ever counted will be decided by the Iowa House.
Democrat Kayla Koether, who lost the House District 55 race to incumbent Republican Michael Bergan by nine votes, is contesting the election after she unsuccessfully asked a judge to order the disputed ballots be opened and counted.
Those absentee ballots have not been counted because they arrived at the Winneshiek County Auditor’s Office without postmarks, as required.
Of 33 mail-in ballots that arrived after the Nov. 6 election, postal officials examining bar codes determined that 29 had been mailed in time.
But the ballots did not have either of two requirements of state law: a postmark to prove it had been mailed in time, or an “intelligent” bar code provided by the auditor’s office that allows the ballot to be tracked though the mail.
The Gazette reported earlier this month that only seven of Iowa’s 99 counties use the fail-safe bar code system — and none are in District 55, which includes parts of Winneshiek, Fayette and Clayton counties.
Koether will present her notice of intent to contest to the Republican-controlled Iowa House, which a judge advised was her only option.
“There are at least 29 Northeast Iowans who cast their ballots on time, in good faith and followed the law, yet elections officials have refused to count their votes. We will follow Judge (Scott) Beattie’s recommended course of action and stand with Northeast Iowa voters to protect their voting rights in an election contest,” Koether said in a statement.
“Ensuring that all legal votes are counted is foundational to our democracy and to our faith in our elections. We will always fight to maintain the rights not only of these voters, but of all Iowans,” she continued.
Earlier, the district court judge threw out her court action over the 33 uncounted absentee ballots in the race, ruling Thursday that the courts lacked jurisdiction to order the counting because the law spells out a process to challenge the vote to the Iowa House.
The Iowa Secretary of State’s Office already has certified Bergan as the winner. Republican Party of Iowa Chairman Jeff Kaufmann said in a statement that it was “time to move on.”
“In court, they identified that they lack sufficient facts for standing to challenge the contest before the House of Representatives,” he said.
Judge Beattie earlier took steps to preserve encoded postal information on the mystery envelopes, but said it was not up to his court to decide whether to count them.
“The grounds asserted by the Plaintiff to count the ballots falls squarely within the parameters of Iowa Code 57.1, and as a result, this matter should be left to the legislative branch,” Beattie wrote in his ruling. “By constitution and statute, the power of the legislature over election contests for legislative seats is clearly spelled out ... That power is constitutionally given to the legislative branch, and this court lacks subject matter jurisdiction as a result.”
Officials said earlier this could be the first time in state history a candidate has made such a request. The Iowa Code does not spell out the specifics of just how the House is expected to handle a contested election. It does give the chamber, if it takes the case, the authority to order depositions or call witnesses.
The Iowa Legislature convenes Jan. 14.
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Earlier this month, Beattie ordered the unread ballots in question be handed over to postal authorities to determine what information could be gleaned from bar codes printed on the envelopes and to find when they were mailed.
According to the Thursday ruling, the Winneshiek auditor reported that 29 were deposited to the postal service on Nov. 5 — before the deadline — and one was submitted Nov. 6. Postal officials didn’t provide information for three envelopes.