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.