The very speedy timing of congressional election contests in Iowa

Last month I highlighted the path forward in Iowa’s Second Congressional District race. After the unofficial Election Day tally ended at a 47-vote margin for Mariannette Miller-Meeks over Rita Hart, Ms. Hart requested a recount. The recount narrowed the margin to just six votes, a margin that the state will likely ratify today. Ms. Hart may well file an election contest.

While one might be inclined to think that such disputes could languish for months, as the 2008 Coleman-Franken Senate contest in Minnesota lasted for several months deep into 2009, that’s not the case under Iowa law. An election contest will wrap up by December 8.

The contest court is created under Iowa Code § 60.1:

The court for the trial of contested elections for presidential electors or for the office of senator or representative in Congress shall consist of the chief justice of the supreme court, who shall be presiding judge of the court, and four judges of the district court to be selected by the supreme court, two of whom, with the chief justice, shall constitute a quorum for the transaction of the business of the court.

The rules are open-ended, and the timing is very fast under § 60.5:

The clerk of the court shall, immediately after the filing of the statement, notify the judges herein named, and fix a day for the organization of the court within two days thereafter, and also notify the parties to the contest. The judges shall meet on the day fixed, and organize the court, and make and announce such rules for the trial of the case as they shall think necessary for the protection of the rights of each party and a just and speedy trial of the case, and commence the trial of the case as early as practicable thereafter, and so arrange for and conduct the trial that a final determination of the same and judgment shall be rendered at least six days before the first Monday after the second Wednesday in December next following.

Note that the rules are “as they shall think necessary for the protection of the rights of each party and a just and speedy trial of the case.” Flexible, to be sure.

But why so fast? Why does the Code urge resolution by December 8 when the complaint in the contest could only be filed after state certification, November 30?

Well, in presidential election disputes, the “safe harbor” under 3 U.S.C. § 5 is six days before “the first Monday after the second Wednesday in December next following,” the date set by Congress for presidential electors to meet and vote.

Iowa Code links presidential election contests with other federal office contests. But the timeline is the same.

Before 1970, Iowa didn’t even have a congressional election contest procedure. Contests after a recount would be left to Congress. But in 1970, the state legislature added a provision to the code to allow for congressional election contests in the same fashion as presidential election contests. (Now-Senator Chuck Grassley was among those voting for this bill in the Iowa legislature!)

And in Iowa, “[t]he right to contest an election is only conferred by statute,” as the late Chief Justice Mark Cady once wrote, such that “contestants must strictly comply,” and “contestants are limited to the scheme provided by the legislature.”

While one might think that presidential election contests ought to operate differently from congressional election contests, it’s up to a state to decide how contests should proceed. And Deschler’s Precedents require exhaustion of state legal remedies before raising a challenge in the House of Representatives.

Then again, maybe there are good reasons to link the timing. It requires expeditious solutions to ensure that Iowa’s congressional delegation is fully represented (unlike Minnesota’s extensive vacancy). It guarantees members of Congress will have certification to present when the new Congress is seated January 3, even if there might be an election contest. And those members of Congress get to participate in the counting of electoral votes January 6, too.

Under the contest timing that the Iowa legislature has expressly provided, the contest period is very speedy—and in the event a contest is filed, the court must give a resolution by December 8.

Recounts and contests--a look ahead in the 2020 Iowa Second Congressional District election

Iowa’s Second Congressional District election is a close one. Shortly after Election Day, Republican candidate Mariannette Miller-Meeks appeared to hold a 282-vote lead over Democratic candidate Rita Hart, heading into a recount. A “clerical error” in Jasper County altered these totals to show Ms. Hart up by 162. That led to a recount in Jasper County and a hand recount in one precinct. Lucas County added a batch of votes that pushed the race back in favor of Ms. Miller-Meeks by 34 votes as of 8 am November 10. (Latest results here.) That’s less than one-hundredth of one percent separating the candidates, and about twenty times the write-in vote total. Those vote totals could still change today as counties finalize the canvass today (Iowa Code § 50.24). Among nearly 400,000 votes cast, it’s an extremely narrow margin.

What’s next? (For all references to the Iowa Code, see here.)

Recount: Candidates may request recounts of particular precincts or counties by the end of the week (Iowa Code § 50.48(1)). Recount boards are to be assembled and begin their work by November 17 (§ 50.48(3)). Recounts are to be completed by November 28 (§ 50.48(4)(c)) so that certification can happen by November 30 (§ 50.38).

Unfortunately, Iowa does not have an automatic recount provision in close races. It also does not automatically require that the entire district be recounted—something, I think, that’s a concern after Bush v. Gore, which expressed concern that different treatment of recount procedures across counties in a statewide election violated equal protection. (Professor Michael Morley has some thoughts about how lower courts have construed the scope of Bush v. Gore here.) But those are for another day, and a legislative solution, perhaps.

It’s not clear whether a recount would change much at all. The Jasper County recount netted Ms. Hart two votes; the subsequent manual recount in one precinct netted Ms. Miller-Meeks one vote. (Optical scan systems are quite good!)

It’s also not clear whether there are many absentee or provisional ballots for the candidates to challenge beyond the recount (which extends only to “ballots which were voted and counted for the office in question”). Iowa has a generous absentee ballot laws, which results in few being rejected; and it has very few provisional ballots given same-day registration and a fairly generous voter identification law that allows for “attesters” in lieu of identification. I haven’t seen public figures about these ballots, but if they’re not counted, they aren’t part of the recount under § 50.48(4)(a).

Contest in Iowa: If a candidate is disappointed with the results of the recount, she may file a contest within two days of the final statewide returns. The “contest court” consists of a five-member ad hoc tribunal: “the chief justice of the supreme court, who shall be presiding judge of the court, and four judges of the district court to be selected by the supreme court.” (§ 60.1) This contest court shall “make and announce such rules for the trial of the case as they shall think necessary for the protection fo the rights of each party and a just and speedy trial of the case.” (§ 60.5.) (Not exactly a lot of guidance.) The objective is to complete judgment by December 8. (This meets the federal “safe harbor” for presidential election disputes, but this provision of the contest rules applies to both presidential and congressional election contests.)

Contest in Congress: There’s one more place for the losing candidate to go—Congress. Congress has the power to judge the elections and returns of its members. Such contests are rare, but they do happen, like out of Florida’s Thirteenth Congressional District in 2006 (which was dismissed). That would be the last stop for January 3, 2021, when the new Congress is seated.

I don’t know what will happen as the last votes come in and as recount challenges proceed, but I’m anticipating the every potential step in the road given how exceedingly close the election has been and how dynamic the counting has proceeded.

A far different look between pre-Election Day and post-Election Day legal disputes

The hundreds of pre-Election Day disputes, many of which were initiated or pursued by the major political parties and their presidential candidates, were all over the map in their approaches, from disputing eligibility of candidates to appear on the ballot to disputing implementation of certain kinds of voting procedures.

But the challenges after Election Day look very different and are much narrower for a variety of reasons.

First, of course, is the margin. If a candidate wins by a wide margin in a state, there’s futility in the challenge (or less value in the challenge if you’re the winning candidate!). That sharply narrows the places for disputes.

Second is looking at the types of legal challenges to ballots. And this is because once you’ve scrambled the egg, it’s impossible to unscramble. That is, once ballots have been cast, commingled, and counted, it’s impossible to figure out which ballots should be excluded.

That’s also due in part to a reliance interest—that is, if voters entered the polling place on Election Day expecting the rules to look one way, then all their votes should be counted together.

Now, there are some batches of ballots that might be in dispute—subject, of course, to the first caveat of margin. Those include:

Provisional ballots, those cast that have some defect like a lack of identification or sufficient proof of residence. They might be cured in some limited period of time after Election Day, or they might be counted if some contingent event happens (e.g., if someone requested an absentee ballot but failed to surrender it at the polls, a state might count the provisional ballot if that absentee ballot never arrives to be counted).

“Discovered ballots,” those “found” after Election Day—it might be negligence or error that failed to include a batch, or it might be claims of fraud. If those weren’t originally included in an original count, there might be disputes over whether they should be counted if there are chain of custody concerns.

Late-arriving ballots, those postmarked on or before Election Day but counted within a set period of time after Election Day. Some states authorize this by statute, others have had judicial decisions, consent decrees, or administrative rules extending the deadline.

A subset of late-arriving ballots are segregated ballots in states like Pennsylvania and Minnesota, already subject to judicial challenge as a kind of late-arriving ballot.

Rejected absentee ballots, due to, for instance, disputes about signature matches.

Ballots not recognized as votes, either by tabulation machines, or that were otherwise manually counted.

Physically damaged ballots that were duplicated by election officials—in some states, if a ballot is torn, smudged, or damaged in some other way, an election official might “duplicate” the ballot so it can be read by the machine.

UPDATE: Special thanks to Professor Michael Morley for supplementing these categories!

Much of these batches, including most provisional ballots and many late-arriving ballots, are mostly beyond material legal dispute. That is, they are authorized under state statute, and challenges about their application would apply only to narrow subsets of ballots.

Or, in recount, one could fight tooth and nail in manual tally about whether to count or exclude this ballot or that based on this marking or that. Again, it’s very piecemeal and narrow.

The most extreme outcome would be to invalidate an election because of uncertainty over the winner. But that extreme outcome comes usually from evidence of pervasive fraud or some systemic question about the election, which requires extensive evidence.

In short, once the egg is scrambled—once a bunch of ballots are commingled and counted under existing rules without a sound hook to challenge those decisions (or under lawsuits that refused to prohibit those decisions)—those ballots are pretty much locked in absent something pretty egregious like pervasive fraud or unusual recount procedures. (It might be that some machines were operating in error, too, but there are a thousand uncertainties….) As for the remaining batches of ballots, they are a fixed universe with fewer viable challenges and far fewer at a systemic level.

We’ll see what litigation (or threats of litigation!) look like in the days ahead, and what kinds of additional precision this quick blog post might have as potential challenges arise. But it’s a portrait of how significantly different these challenges might be—at least, challenges filed in court.

Recanvassing rules for the Iowa Democratic Party and the Iowa caucuses

While the chair of the Democratic National Committee, Tom Perez, recently called for the Iowa Democratic Party to recanvass the results of the caucus. He can’t do that, nor do existing rules allow it. But there are ways to recanvass.

Rule 2 of the Delegate Selection Rules for the Democratic National Convention provides,

K. While parties are encouraged to use government-run primaries, in states where the State Party chooses to hold a Party-run process to establish presidential preference, the State Party’s Delegate Selection Plan shall prevent attempts at voter suppression, disenfranchisement, and ensure an open and inclusive process. Further, the Rules and Bylaws Committee shall determine whether the State Party’s Delegate Selection Plan meets the requirements specified in this section, including:

…

6. Ensuring final expressions of preference as part of the presidential nominating process are securely preserved, in a method to be specified in the State's Plan, that ensures the availability of a prompt and accurate recount or recanvas;

7. Providing a standard and procedure by which a presidential candidate may request a recount or recanvas that is paid for by the candidate and carried out in a timely manner;

The Iowa Democratic Party established the following recanvas rules for 2020:

8. Any presidential candidate may request a precinct-levelreview of caucus results by submitting a request in writing to the Iowa Democratic Party Chair.

a. Requests for precinct-level review must include the name of the county or counties, the precinct(s), and a credible explanation describing the reason for the request.

b. Requests for precinct-level review must be received by the Chair no later than Friday, February 7, 2020, at 12:00 p.m.

c. The State Party will respond to a request for precinct-level review within 48 hours of receipt. The response will include an anticipated timeline for the review and an estimate of fees to be assessed to the campaign in order to complete the review.

9. Any presidential candidate may request a recanvas of district or state results by submitting a request in writing to the Iowa Democratic Party Chair.

a. Requests for recanvas must include the scope of the desired recanvas, a thorough description of the challenge, and an explanation about how the national delegation could be altered as a result of the problem or its correction.

b. Requests for recanvas must be received by the Chair no later than Friday, February 7, 2020, at 12:00 p.m.

10. The State Central Committee will certify caucus results no later than February 29, 2020.

In short, while the National Committee might examine challenges to the Iowa caucuses at the convention, the formal recanvassing process occurs when a candidate asks for a recanvassing, by Friday, February 7, at 12 pm. I assume, of course, some candidate will take Mr. Perez’s public statement to heart and make the request, but we shall see. (UPDATE: That deadline was extended.)

Election counts and recounts

I’ve occasionally tweeted about election margins and recounts. Given a number of (relatively) close elections, refusals to concede, and retracted concessions, I thought I’d offer a little perspective (and a very little math).

All (or, at this point, nearly all) of the change in the margin between candidates in Florida’s Senate, Governor, and Commission of Agriculture races, and Georgia’s Governor race, have arisen because of mere counting of the ballots. There are lots of (here I’ll focus on legitimate, by far the more common) reasons for late-added votes. Provisional ballots could be deemed valid or cured. Vote-by-mail ballots might permissibly arrive after Election Day in some jurisdictions. But these are typically smaller figures. Slow or inefficient counting, or simply more general administrative failures, by election officials might result in added later totals.

To put it obviously, only after the votes have been counted can there be a recount. It’s there that many hold great interest, but it’s there that little changes.

I draw on a few rough figures form past recounts. Minnesota’s Al Franken netted 527 votes in a recount in 2008 in an election with about 2,885,555 votes cast. That turned his 215-vote deficit into a 312-vote victory (post recount and post litigation). The 527-vote change was just 0.018% of all votes cast. (Note that this reflects a percentage of this change compared to all ballots cast. It is not that there were 527 votes that were added for Mr. Franken; votes were added for Mr. Franken and for Norm Coleman, but Mr. Franken gained 527 votes relative to Mr. Coleman.)

Washington’s Christine Gregoire recount netted 390 votes in a 2004 gubernatorial recount in an election with 2,810,058 votes cast. Her opponent Dino Rossi originally held a 261-vote lead, but after two rounds of recounts Ms. Gregoire was declared the winner by 129 votes. The 390-vote change was just 0.014% of all votes cast. (Again, both Mr. Rossi and Ms. Gregoire increased their vote totals in the recount, but Ms. Gregoire increased them at a faster rate than Mr. Rossi, and that 390-vote difference was this percentage.)

Finally, Donald Trump won Wisconsin’s electoral votes over Hillary Clinton by a reported margin of 22,617 votes in 2016. Green Party candidate Jill Stein demanded a recount, which netted Mr. Trump 131 votes and increased his margin of victory to 22,748 among 2,976,150 votes cast. That 131-vote margin reflected 0.0044% of all votes cast. (This was a much more mundane recount in some respects because neither candidate formally challenged the results.)

The long and short of this is, recounts rarely change much in absolute terms. Even in elections with millions of votes cast, the relative change in the margin of victory is extremely low. It was enough to give Mr. Franken and Ms. Gregoire victories, but it was still very little that changed.

One basic reason that’s the case? Recounts recount every ballot—an obvious proposition, of course. But that means a challenging candidate picks up votes as well as his opponent. To successfully change the outcome of an election during a recount, then, you need either extraordinary luck, or you need to establish that there are systematically more votes for your candidate that were “missed” during the first count—mismarked ballots, hanging chads, provisional ballots that were deemed invalid, and so forth.

That can be a high bar. Typically, we’d expect errors like this to be randomly distributed. But as Florida’s 2000 election showed, one county’s procedures (e.g., the use of punch card ballots and a butterfly ballot design) might differ from another’s, which may disproportionately impact one candidate over another to the extent that one candidate’s support resides more heavily in that county. And as some observers of the 2004 Washington race and the 2008 Minnesota race might argue, out-lawyering your opponent can help net a few more votes, too.

Nonetheless, absent evidence like that, or in the event that there is offsetting evidence that may have disadvantaged candidates relatively equally, we would expect little to change in a recount.

Consider Minnesota again. Mr. Franken netted 1 vote for every 5,475 votes ultimate counted, that 0.018% margin. To win, he had to not simply gain votes; he had to gain votes faster than his opponent. And he did so.

And to Washington, Ms. Gregoire fared even worse. She managed to net just 1 vote for every 7,205 ultimately counted.

For both of them, despite these overwhelming odds, the extraordinarily narrow margins of victory—low three-digit margins—helped.

So where do things stand today?

The last update in Florida’s Senate election shows Rick Scott leading Bill Nelson by 12,562 votes among 8,184,631 votes cast. That’s 0.15%, or about 10 times the gains that Mr. Franken and Ms. Gregoire ultimately made—and that would just pull Mr. Nelson into a tie. (Again, however, recall how I opened this post—much depends on whether this is even the final count, as opposed to gains being made in the recount.)

In Florida’s gubernatorial race, among 8,218,682 votes cast, Ron DeSantis leads Andrew Gillum by a margin of 33,684. That’s 0.41%, or would require Mr. Gillum to net 1 vote for roughly every 244 votes cast. (And, of course, this is a rough figure—more ballots would likely be added to the overall total votes cast as “undervotes,” those that failed to register for any candidate, were added to the totals in a recount.)

Florida’s Commissioner of Agriculture, assuredly less watched, may still be instructive once the recount dust settles. Nikki Fried leads Matt Caldwell by 5,326 votes among 8,055,348 votes cast, or a margin of 0.066%.

In Georgia, Brian Kemp needed to secure more than 50% of the vote to avoid a run-off and win outright, and 3,929,937 votes cast, or about 10,875 votes to spare, a margin of 0.28%. (The math looks a little different when looking at a 50% cut-off rather than his position relative to challenger Stacey Abrams, but this works well enough for now.)

In short—the final count matters a great deal for each of these races. Under almost no recount scenario would anyone other than the projected winners win the recount, if recent history is any guide. Only significant election administration errors—failure to count large quantities of votes in select counties, for instance—would be these margins by overcome by challengers, because they’re the kinds of things that were omitted from the count in the first place. That said, there’s a first time for everything, which is probably the news that keeps hope alive for challengers in these races.