Guest Columnist

Iowa Democrat pursues rare election contest. Here's how it works

Law professor: Congress usually defers to the state process, but sometimes develops its own rules

The Capitol is seen in Washington, Monday, Nov. 30, 2020. (AP Photo/J. Scott Applewhite)
The Capitol is seen in Washington, Monday, Nov. 30, 2020. (AP Photo/J. Scott Applewhite)

Iowa’s 2nd Congressional District election has become one of the closest congressional elections in history. The original canvass showed a 47-vote margin of victory for Mariannette Miller-Meeks over Rita Hart among nearly 400,000 votes cast. A recount across 24 counties narrowed the margin to just six votes. The state certified Miller-Meeks as the winner. Hart has announced that she plans to file an election contest in the House of Representatives.

Election contests in Congress are rare, and winning a contest rarer still. It’s worth looking at how the election got here and what a contest looks like.

I had the privilege of serving as one of Miller-Meeks’s designees to the recount board in Johnson County. Recount boards are three-member panels with a designee from each candidate, plus a neutral third person jointly selected. Ballots were counted publicly and transparently to all observers. The recount board reaches most decisions unanimously, but divided 2-1 decisions occasionally occur.

Each county’s recount board decided on how to proceed with the recount. In some counties, the board unanimously agreed to a machine recount, running the ballots through a counting machine and reporting the totals. We picked a different procedure in Johnson County. We worked for eight straight days, looked at every one of the 84,197 ballots by hand with our own eyes, and tallied the results.

After the recount yielded a six-vote victory Miller-Meeks, Iowa certified the results Nov. 30. Hart had two days to file a contest in the Iowa courts. A special five-judge court led by Chief Justice Susan Christiansen and four district court judges would have reviewed questions about errors in the tabulation or the omission of legal votes from the tally.

But this court’s deadline would have been short — the court would have needed to issue a decision by Dec. 8. That would have been enough time to look at a handful of disputed ballots, but probably not enough for a second recount, if Hart had asked for that.

Instead, Hart announced that she would skip this step and seek review in Congress. The Constitution guarantees, “Each House shall be the judge of the elections, returns and qualifications of its own members.” That means the House of Representatives is the final decision-maker about who was elected.

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The framers of the Constitution gave Congress this final power to protect the legislature. They worried that other branches of government might meddle with the legislature, as the King of England had interfered with members in colonial legislatures. The people elected candidates to the legislature, and the legislature itself would judge those elections.

Congress used to involve itself regularly in election disputes. But over the last one hundred years, it has increasingly trusted state election officials and state courts.

That means Congress usually defers to the state process. The State of Iowa is presumed to have election officials who performed their duties loyally and honestly. Miller-Meeks has a certificate of election showing that she is entitled to the seat and, absent an extraordinary finding, will be seated Jan. 3 when Congress convenes.

Hart’s challenge would then proceed under the Federal Contested Election Act of 1969. Hart would allege to Congress that she is entitled to Miller-Meeks’s seat. A contest looks like a lawsuit — Hart would file a notice of intention to contest, Miller-Meeks would be served and have to respond, and the case would go to discovery to exchange information and gather evidence.

Hart’s first difficulty arises because she chose not to file a contest in Iowa state court. Precedent in Congress indicates that contestants should avail themselves of state procedures first, and Congress has sometimes dismissed disputes if a contestant failed to exhaust state remedies.

But Congress might still choose to hear the claim despite this precedent. Congress might engage in its own recount, or it might examine disputed ballots to determine whether they should be counted. It would look to Iowa law to set the recount rules.

Congress, however, sometimes develops its own rules. And that was the source of the last major election feud in Congress after the 1984 election, in a dispute known as the “Bloody Eighth.” Republican candidate Rick McIntyre carried Indiana’s Eighth Congressional District by a 34-vote margin over Democratic candidate Frank McCloskey. Indiana declared him the winner after he won a count and a recount.

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Democrats in control of Congress refused to seat McIntyre. Congress then referred ballot counting to a task force that developed its own counting rules — rules that were not consistent with Indiana law. After counting put Mr. McCloskey ahead by just four votes, the task force changed its rules again and stopped counting ballots. Democrats then voted to seat McCloskey. Republicans walked out of Congress in protest.

Rarely do election contests get as bitter or partisan as the Bloody Eighth. And rarely does Congress ever overturn a result when a candidate won the recount and arrives in Congress with a certificate of election. But one never knows what Congress will do.

The goal is to wrap up the contest within six months. After all, a congressional term of office is only two years. So buckle up. It may be a bumpy ride ahead.

Derek T. Muller is a professor at the University of Iowa College of Law. He served as a designee of Mariannette Miller-Meeks on the Johnson County recount board.

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