Citing 22 votes she said weren’t counted, Rita Hart asks House of Representatives for a recount in Iowa’s 2nd District

Iowa Senator Rita Hart attends a listening session at the Kirkwood Regional Center at the University of Iowa. Monday, June 18, 2018. — Zak Neumann/Little Village

Rita Hart said she would file a Notice of Contest with the Clerk of the U.S. House of Representatives on Tuesday, her campaign announced in a statement, asking the House Committee on Administration to investigate the results of the election for the open seat in Iowa’s 2nd Congressional District and possibly conduct a recount of the votes.

Hart announced her intention to file a challenge under the Federal Contested Elections Act on Dec. 2, following the Iowa Board of Canvas certification of the results in the 2nd District, which gave Republican Mariannette Miller-Meeks a six-vote margin of victory over Democrat Hart. The certification came after a district-wide recount, requested by Hart.

In accordance with Iowa law, the recount only included ballots that had been counted as part of the original count in the district.

“Everyone has acknowledged that there are uncounted votes left and after reviewing those ballots and making sure they are counted, it will be clear that I have won this election,” Hart said.

The House Committee is empowered to set its own standards of review in election challenges, so it could include ballots it determines to be valid that have not been previously counted.

In her statement, Hart listed 22 examples of ballots she said were legally cast but have not yet been counted.

2 curbside ballots cast by voters living with a disability in Scott County who legally-cast their ballots under Iowa law, are permitted to vote from their vehicles and have their votes counted. Both of these were votes for Hart.

9 absentee ballots cast by voters in Marion County who legally-cast their ballots but inexplicably had them not counted in the initial canvass and therefore the ballots were not permitted to be counted in the recount. 5 of these votes were for Hart, 3 for Miller-Meeks, and 1 was an undervote for neither candidate.

1 provisional ballot cast by a voter in Johnson County that was legally-cast and for which the voter provided the requisite proof of residency and identity by the November 9 deadline, but was uncounted due to election worker error. This was a vote for Hart.

1 absentee ballot cast by a voter in Johnson County, which was unlawfully rejected by election workers due to the location of a signature on an affidavit envelope. This was a vote for Hart.

2 absentee ballots cast by voters in Johnson County who received pre-sealed ballot envelopes and therefore had to unseal the envelopes to place their ballots inside before securely sealing them. These votes were unlawfully rejected. These were votes for Hart.

5 absentee ballots cast by voters in Johnson and Scott Counties who have sworn under oath that they sealed their return envelopes but election workers rejected the ballots for not being “properly sealed”. These were votes for Hart.

2 absentee ballots cast by voters in Des Moines and Wapello Counties who, despite placing their ballots in drop boxes by the deadline had their ballots rejected because the drop boxes were in Linn County. These were votes for Hart.

“As I have said from the beginning of this entire process, nothing is more important than ensuring every Iowan has their vote counted,” Hart said.

The race in Iowa’s 2nd District was the closest in the country. In the first reported results on Election Day, Miller-Meeks lead her Democratic opponent Rita Hart by 282 votes. The lead in the unofficial vote total changed twice the week after the election, as Jasper County and Lucas County corrected results that has initially been misreported.

After Jasper County submitted its revised vote total, Hart took the lead by 163 votes, which shrunk to 152 votes following a recount in the county. But after Lucas County amended its vote totals, Miller-Meeks pulled ahead by 47 votes in the unofficial totals posted by the Iowa Secretary of State’s Office.

Following that, Hart requested a recount of votes in all of the district’s 24 counties, which resulted in the six-vote lead for Miller-Meeks that the state board certified.

Miller-Meeks responded to Hart’s announcement in a video message, saying “[Hart] knows her complaints are baseless.”

Miller-Meeks said that Hart should have taken the final step in contesting an election under Iowa, which allows for a candidate to appeal to a judicial panel headed by the chief justice of the Iowa Supreme Court.

Hart has said she chose not to do that because campaigns were required by federal law to resolve any disputes regarding the November election by Dec. 8, and the eight-day interval between the certification of the election and that deadline was not sufficient time for her challenge to be fully considered.

“Unfortunately, Rita Hart now wants Washington politicians to override the will of Iowa voters and disenfranchise hundreds of thousands of Iowa voters,” Miller-Meeks said on Tuesday.

The Constitution gives the House the authority to be “the Judge of the Elections, Returns and Qualifications of its own Members.” The seldom-used Federal Contested Elections Act was passed in 1969 to give a regular structure to the process for challenging election results in the House.

Challenges under the FCEA are judged by the Committee on House Administration, and if the committee decides Hart’s challenge has sufficient merit, it could conduct a recount of the district. The committee will be able to set its own standards for examining ballots and determining voters’ intentions, so it may choose to examine ballots that were not included in the state’s recount.

At the end of an election review, the committee presents a report with recommendations on what actions to take to the whole House, which then votes on the recommendations.

The last time the House overturned the results of the election in response to a complaint filed under the FCEA was in 1985. Rep. Frank McCloskey, a Democratic incumbent from Indiana, lost to Republican Richard McIntyre by 418 votes, according to the certified election results. The committee conducted an investigation and a recount, which took six months. The committee concluded McCloskey won his district by four votes, and the House voted to seat McCloskey.

Republicans protested, claiming that overturning the state-certified results was just a partisan action by Democrats, who then as now controlled both the committee and the House. But the House’s decision stood, and McCloskey took his seat.

The House didn’t seat McIntyre while the committee’s review was ongoing, but that doesn’t mean Miller-Meeks wouldn’t be seated if the committee agrees to take up Hart’s challenge. According to the Congressional Research Service’s summary of the FCEA, state certification of an election “is considered prima facie evidence of one’s right to the seat, and provides a presumption of the regularity of the returns of that election.” But “the seating of a Member-elect does not prejudice a contest pending under the Federal Contested Elections Act (FCEA) over final right to the seat.”

If the committee decides to conduct a recount and it determines Hart received more votes, it could recommend that the House vote to unseat Miller-Meeks and replace her with Hart.

Asked during a Dec. 4 appearance on Iowa Press about Hart’s claim that there were ballots in the 2nd District that were never counted before the election was certified, Miller-Meeks said she agreed.

“There were votes that were cast that were for me also that were not counted and that I did not receive,” she told the Iowa Press panel. “So I think throughout that process you can’t continue to want to change the rules because the count doesn’t go the way that you want.”

In subsequent interviews and statements, Miller-Meeks has said she believes all legally cast ballots in the district were counted before her six-vote victory was certified.

After receiving formal notification from the Clerk of the House of Hart’s Notice of Contest, Miller-Meeks will have 30 days to file a response.

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