The timing of congressional election contests in Iowa
On the heels of Rita Hart’s decision to withdraw her congressional election contest in Iowa’s Second Congressional District dispute, the final formal ratification of the election Congresswoman Mariannette Miller-Meeks, I want to return to one point about the nature of Iowa’s contest court.
I’ve argued that failure to exhaust state remedies is a reason for Congress to reject an election contest. True, as some of the briefing has pointed out, (a) it is not a reason under the Federal Contested Elections Act for a prompt dismissal before discovery, as the Act contemplates four specific categories for early dismissal; and (b) it is not a requirement, as Congress can, of course, alter its precedents as it sees fit. But it has, in the past, required exhaustion of post-Election Day mechanisms in state court as a basis for rejecting a complaint.
That’s for a couple of good reasons, in my view. The first is the development of a contemporaneous fact record. Indeed, consider one remark by the Hart campaign’s attorneys to Congress during the contest: “With no written rules of procedure or official records of recount board votes, descriptions of these ad hoc processes are subject to the limitations of human memory.” Of course, a process that plays out months later in Congress looks very different from a process that plays out days after the recount concludes in state court.
The second is an interpretation of state law. Many of the allegations in the Hart contest turned on definitions of state law—what kinds of unsealed envelopes can or cannot be counted, when “commissioner” refers to the commissioner of a voter’s county or a commissioner of any county, and so on. They were nuanced questions of state law. And for the most part, Congress defers to state law—although in exceptional circumstances, as the Hart contest notes, “the Committee should therefore exercise its discretion to depart from Iowa law.” But starting with state law is best understood as starting with what a state’s courts interpret the law as—not starting with members of Congress construing it.
To do so—to address challenges closely in time to ensure there’s a fresh record, and to ensure state courts get a first look at questions of state law—the Iowa contest court has a fixed jurisdiction. It is a creation solely of statute, and the Court cannot exist beyond the jurisdiction authorized by the legislature.
It also has no authority to engage in a second recount—the recount process is performed by county boards, created statute. Instead, here are the grounds for a contest:
2. Grounds for contesting an election under this chapter are:
a. Misconduct, fraud or corruption on the part of any election official or of any board of canvassers of sufficient magnitude to change the result of the election.
b. That the incumbent was not eligible to the office in question at the time of election.
c. That prior to the election the incumbent had been duly convicted of a felony, as defined in section 701.7, and that the judgment had not been reversed, annulled, or set aside, nor the incumbent pardoned or restored to the rights of citizenship by the governor under chapter 914, at the time of the election.
d. That the incumbent has given or offered to any elector, or any precinct election official or canvasser of the election, any bribe or reward in money, property, or thing of value, for the purpose of procuring the incumbent’s election.
e. That illegal votes have been received or legal votes rejected at the polls, sufficient to change the result of the election.
f. Any error in any board of canvassers in counting the votes, or in declaring the result of the election, if the error would affect the result.
g. That the public measure or office was not authorized or required by state law to appear on the ballot at the election being contested.
h. Any other cause or allegation which, if sustained, would show that a person other than the incumbent was the person duly elected to the office in question, or would show the outcome of the election on the public measure in question was contrary to the result declared by the board of canvassers.
The only recanvass right is as follows:
The parties to any contested election shall have the right, in open session of the court or tribunal trying the contest, and in the presence of the officer having them in custody, to have the ballots opened, and all errors of the precinct election officials in counting or refusing to count ballots corrected by such court or tribunal.
All these things require specificity. There is no freestanding right to a second recount. In a way, that entirely makes sense. The recount is over. The contest court is about specific legal challenges. For instance, the recount board could not count ballots that were not counted on Election Day. The recount board does not determine whether there was fraud. And so on.
One could, I suppose, construed any “error” in “counting” so broadly that the whole district needs to be recounted. But given the extensive and specific rules elsewhere about how to engage in a recount, and the absences of such mechanics in the contest provision, it seems to be an inappropriate remedy.
Some commentary in recent weeks, however, lamenting Ms. Hart’s loss has misconstrued, I think, the nature of the contest court.
Consider this take from John Deeth of Johnson County:
After the recount that left her six votes short was canvassed on November 30, Hart had an extremely short timeline, just over a week to request and complete a state level challenge to the election. Team Hart decided, and they weren't wrong, that a week was insufficient time. The challenge process is designed for small city councils or maybe a legislative district, not for a quarter of the state.
That’s demonstrably false—the challenge process was specifically designed for statewide presidential elections, and later included all congressional contests, both Senate and House. It was specifically designed for large elections. It was enacted shortly after the federal Electoral Count Act of 1887 was enacted, designed for presidential elections. It was updated in 1970 to allow for congressional election contests—again, specifically for congressional contests.
Consider, too, this take from Laura Belin over at Bleeding Heartland:
For the sake of optics, Hart should have attempted to contest the election in Iowa before going to Congress. But her legal team was correct about the time constraints. The Iowa contest court could never have thoroughly considered the issues at hand, much less order the full recount the situation warranted, by the December 8 deadline. (Some states allow much more time for federal election contests; Norm Coleman’s contest of Minnesota’s 2008 U.S. Senate race took months to resolve.)
This, too, inaccurately describes the law. The contest court is not a court in Iowa to offer a second recount (or a third count). It is a limited venue for particular grievances.
I also want to offer some contrast about why the Iowa contest court can move dramatically faster than the Minnesota contest court, specifically in the context of Coleman-Franken 2008:
Coleman-Franken looked at 3 million ballots, not the 400,000 in Hart—Miller-Meeks; admittedly, a statewide contest in Iowa would also involve far more ballots, but not in this case.
The election in 2008 was not certified until January 5; in Iowa, the congressional race was certified November 30.
To that end, the 2008 election had litigation about 12,000 rejected absentee ballots that delayed the initial certification.
The Minnesota Supreme Court took two weeks to select a trial panel; by statute, the Iowa Supreme Court has two days to select a panel.
After the Minnesota trial court issued its decision, there is a right of appeal to the Minnesota Supreme Court; in contrast, there is no appeal from the Iowa contest court.
To that end, there was a ten-week delay between the trial court’s decision appealed to the Minnesota Supreme Court.
All that is to say, if you delay certification, delay the selection of the contest court, and allow a right of appeal, of course the process is going to take dramatically longer. By my count, Iowa’s law offers at least 17 weeks of increased efficiency over Minnesota’s at a bare minimum—by constraining the certification deadline, fixing the time to compose the court, and eliminating a second level of judicial review, Iowa’s contest court procedure offers far more efficiencies.
Now, it’s entirely plausible, I think, to consider extending the timeline a couple of weeks, for congressional elections (not presidential elections). And with some light modifications, the recount boards can still meet their end-of-November deadline with some added personnel to assist counting; instead, it would be to give the contest court an extra couple of weeks to decide any issues. All this could easily be wrapped up by January 3—to allow a state to have full representation in Congress and to avoid needless delays and vacancies that occurred in Minnesota.