DES MOINES — For the first time in more than a quarter of a century, Iowa lawmakers will determine the outcome of a legislative election.
A House vote is scheduled Monday on Northeast Iowa’s contested House District 55 election that resulted in incumbent Republican Rep. Michael Bergan of Dorchester winning by nine votes over Decorah Democrat Kayla Koether.
Nearly 10 weeks after that Nov. 6 election, Bergan was sworn in and been serving in the Legislature since it began its 2019 session on Jan. 14.
After a district court judge ruled it was up to the House to make a decision on Koether’s challenge of the outcome, she asked the House to open and count 29 mail-in absentee ballots that arrived without postmarks.
The last time Iowa lawmakers were called on to settle an election was in 1993, when Republican Joe Kremer claimed there were irregularities in a Senate election that Democrat Larry Murphy won by 16 votes. His challenge was rejected on a party-line vote, 26-23.
House Democrats expect history to repeat itself Monday — this time with a GOP party-line vote against a Democrat.
“The question is ‘What is a bar code?’” House Speaker Linda Upmeyer, R-Clear Lake, told reporters. “Based on what the judge said and Koether said, I think the question is clear and it surrounds the bar codes.”
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She believes Iowa law is clear that voters have 29 days to return their absentee ballots. The absentee ballot “alerts you to the fact that you can’t count on a postmark, so you need to get that in a timely fashion,” she said.
Not only did the 29 disputed ballots not have postmarks, they didn’t have what’s called an “intelligent bar code.”
That’s a bar code applied by the county auditor to track the ballot through the mail. Only seven of Iowa’s county auditors use those bar codes — none of them in District 55, which includes all or parts of Winneshiek, Fayette and Clayton counties.
Republicans insist it is not the same as a bar code the postal service sometimes puts on mail.
But based on the postal bar code — not a bar code from the auditor — the postal service found the 29 disputed ballots were indeed in the mail before the deadline.
That’s good enough for House Democrats.
Rep. Brian Meyer, D-Des Moines, who served on the House committee that heard Koether’s challenge, called the process a “kangaroo court … a total sham.”
“We know the ballots were in on time. They were in the auditor’s office on time,” Meyer said. “They’re hanging their hat on a technicality — the (intelligent bar code). But the reality is that we should err on the side of democracy. Anything less is a violation of their constitutional rights to have their votes counted.”
Even if the disputed ballots are counted, Meyer said, “it would be very difficult for her to win.”
Assuming all 29 voters chose either Koether or Bergan, she would need at least 20 of the 29 votes to overcome Bergan’s advantage.
“She’s not unrealistic about the chances of her winning,” Meyer said.
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For her part, Koether is holding out hope that Republicans “will act in good faith and have the ballots opened and counted.”
That’s not the history of election challenges decided in the Legislature.
Besides the 1993 challenge, there were challenges in 1981 and 1975.
In 1981, a GOP House majority dismissed a Democratic candidate’s challenge on a technicality. In the other case, a Republican was declared the winner by 24 votes and seated, but his Democratic opponent was seated months later by the Democratic majority in what then-Gov. Bob Ray, Republican, called “a pure political act.”
Still, for Republicans to oppose counting the ballots is “a tough vote for them to justify, not only to these 29 citizens but their people back home,” said Democratic Rep. Mary Wolfe of Clinton, who also served on the panel hearing the challenge.
“The allegation is that the party in the majority gets what they want,” she said. “To be honest, that’s politics.”
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Radio Iowa contributed.