Kayla Koether, Democratic candidate for Iowa House district 55, believes that 29 uncounted ballots in Winneshiek County are valid, and should be counted.
Incoming House Minority Leader Todd Prichard, a Charles City Democrat, agrees.
Iowa’s Republican Secretary of State Paul Pate, who is charged with overseeing the state’s elections, does not.
None of them seem to have an answer to an important question: Were there other valid votes that went uncounted in the November election, and if there were, how many?
“It’s a possibility,” Prichard said. “This is getting noticed because this election has such a close margin. It’s possible this happened in districts where the margin wasn’t so close, where people weren’t paying as close attention.”
It’s possible the number of valid, mailed-in ballots that went uncounted could be in the thousands. More than 547,000 Iowa residents voted absentee this year, a record number for the state in an election with the highest ever turnout in a midterm election of 1.3 million voters.
The current dispute is the result of a conflict between state law and current practices of the U.S. Postal Service. Iowa law says mailed absentee ballots received after election day must have a postmark to allow election officials to determine they were mailed by the mandatory deadline of the day before the election. However, the postal service doesn't typically postmark absentee ballot envelopes.
It's not clear how many Iowa ballots were not counted because they lacked postmarks. A spokesman for Pate has said the office does not know. Messages sent to the Iowa Secretary of State’s office were not returned on Thursday.
“The legislature will decide who wins this election and what votes are counted,” Prichard said Thursday. “As I understand it, it will start and end in the House.”
Koether trails Republican incumbent Michael Bergan by nine votes in district 55, which includes Clayton, Fayette and Winneshiek counties. In November, she sued Pate and Winneshiek County Auditor Ben Steines after they refused to count 33 mailed-in ballots in her race against Republican state Rep. Michael Bergan. Steines and Pate said the envelopes lacked a postmark that would indicate when they were mailed.
State law states that absentee ballots must be mailed no later than the day before the election to be counted. For ballots that arrive after Election Day, the law says officials can use either the postmark or an “intelligent mail barcode” to determine whether it was mailed on time. Court records indicate the envelopes containing the 33 ballots in question may have been too thick to run through the postmark machine.
The envelopes did, however, contain a postal bar code on a lower edge that would likely show when they were mailed. A court ruling gave Koether the right to determine whether the uncounted ballots were mailed on time. Of the 33, it was determined that 29 were, in fact, mailed on time.
“There is information on the envelope that tells you when the ballot entered the system. The state code requires that the ballot enters the system before election day. It’s that simple,” Prichard said. “If the ballot was mailed before election day, it should be counted. I think the Iowa Code is pretty clear, and I think it should be applied in this case.”
Pate and Steines, however, argued that state law doesn't allow those types of barcodes to be used to affirm a ballot mail date, and declined to count the ballots.
Koether asked Judge Scott Beattie in a lawsuit she filed Nov. 29 to order them to count the 29 absentee ballots that in question. Beattie concluded that the Iowa Constitution and state law establishes a procedure for legislative seat challenges to go to the lawmakers themselves and not the courts.
"That power is constitutionally given to the legislative branch, and this court lacks subject matter jurisdiction as a result," he wrote.
Prichard said the judge ruled that the right place to contest the election is in the legislature, pursuant to Iowa code.
Last Friday, Koether notified Bergan and Pate that she's contesting the election. That triggered a seldom-used formal process that requires the House to consider election disputes. The Republican-led Iowa House or a committee appointed by leaders now must act as a court to consider evidence and decide whether to count the ballots.
“What I expect to happen is there will be some discussions as how we adjudicate this,” Prichard said. “It’s really an undefined process — a lot of it will rest on the Speaker of the House, Linda Upmeyer, as to how she wants to deal with this.”
Prichard said that in the few times this has happened in the past, a committee was formed and the committee made a majority and a minority recommendation. The recommendations were then voted on by the full House.
He added all of this might be unnecessary, if Pate would just count the votes.
“The votes were properly cast — they are legally cast ballots,” Prichard said. “There really isn’t a grey area in what should be done. It’s clear these 29 ballots should be counted.”
If the ballots were counted and it was clear Koether lost, Prichard said it was “very likely” that she would drop the issue.
“If we knew what the vote count would be, that would cut to the chase,” he said. “The 29 votes may or may not sway the election, but I think it will prevent 29 voters from being disenfranchised, and it will uphold their right to vote, which I think is important. I think it also gives legitimacy to the winner, whoever that may ultimately be.”
Prichard didn’t rule out future legislation to clarify the law.
“If that’s what it takes, yeah, but my point is the law is already clear and straightforward,” he said. “I think the code is clear. I think the guidance from the secretary of state is incorrect, but if we need to legislate what the secretary of state has somehow made unclear, then I guess that’s what we’ll have to do.”
At this point, it isn’t clear to anyone if those 29 votes will ever be counted.
“I don’t know, I hope they do, I think they should, and I think common sense says that they should,” Prichard said. “I’m going to try to remain hopeful.”
(The Associated Press contributed to this report.)