Virus Outbreak Congress

U.S. Rep. Mariannette Miller-Meeks, R-Iowa., speaks during a House Select Subcommittee on the Coronavirus Crisis hearing on Capitol Hill in Washington, Thursday, April 15, 2021.

The 2020 election is finally over. The last contested race was resolved when Rita Hart withdrew her election contest before the U.S. House of Representatives on March 31. Rep. Mariannette Miller-Meeks won the race for Iowa’s Second Congressional District by six votes. Hart had claimed that had 22 other ballots been counted, she would have won the race by nine votes. Miller-Meeks countered that Hart had the chance to raise her claims before an Iowa contest court but did not. Her default, Miller-Meeks argued, meant that the House should not consider the contest.

I had a front-row seat to this fight. I was the lead attorney for Rep. Miller-Meeks in the state recount proceedings and then in the contest of the election’s results before the House. I got to see a real-life stress test of Iowa’s election laws and then an epic legal and political fight play out on a national stage.

First, a bit of the backstory. The unofficial returns had Miller-Meeks up by about 280 votes on election night. While close, this margin seemed large enough to survive a recount. Recounts rarely change election results by more than a handful of votes.

Then came two bolts from the blue. First, election officials in Jasper County (one of 24 counties in the district) discovered a tabulation error. When they corrected the error, Miller-Meeks was behind by about 110 votes. The campaign went into crisis mode. We assembled a team for an administrative recount in Jasper County the weekend following the election. The recount confirmed the corrected total. At this point, we thought the race was lost.

Then came the next surprise. The Monday after the election, yet another county discovered a tabulation error in its figures. Now we were back on top, this time by a final margin of 47 votes. An administrative recount confirmed this number.

With the closeness of the election, and with the lead having changed hands more than once due to tabulation errors, it was clear that we were heading to a recount. Under Iowa law, that meant that the campaigns had to identify a recount board representative in each county. We had to develop a plan for the recount strategy, provide training for our recount board members, and handle the logistics of conducting and monitoring the recount.

Recount boards had the choice of machine or hand recounts. A hand recount would mean individually tallying each ballot. A machine recount would mean repeating the process used on Election Day. We felt that a machine recount was the only way to guarantee consistency in the process and to avoid unduly emphasizing or valuing votes in certain counties over others.

The Hart campaign had a different view. It pushed for hand counts in two urban counties, Johnson and Scott, but agreed to a machine recount elsewhere. Their strategy sought to weigh their own voters more than ours. Unfortunately, Iowa’s recount laws did not give us immediate recourse on this point. All Hart’s people had to do was convince the third member of the recount board (a person selected by both campaigns or picked by a judge if we couldn’t agree) to go along with the hand recount. We knew that this inconsistency by Hart’s representatives would work in our favor later if we ever got before a judge, but in the short term, it was a source of real frustration to the Miller-Meeks campaign.

Most of the county recounts were uneventful, but a few issues arose. In Jasper County (the one that had started the drama by finding a tabulation error), the campaigns agreed to a machine recount. Unfortunately, the machine broke down immediately. After a technician replaced a part, the tabulation produced a result wildly off from both the election results and the administrative recount. The result would have been a net gain of 13 votes for Hart. The county auditor and the technician then announced that they believed the machine had not been properly repaired. Hart’s representative on the recount board said that the board should accept these results; our representative argued that this would be wrong, and the board’s third member agreed. The machine was eventually repaired, and the recount went on ahead.

This episode never received the attention it deserved. Only one Iowa reporter covered it, and his story was never picked up by other media. The Hart campaign’s actions were deeply cynical, reflecting a willingness to accept flawed results in a win-at-all-costs mentality. When prominent Democrats accuse Republicans of being vote suppressors, I think of the actions of Hart’s lawyers from the Democratic-aligned law firm of Perkins Coie and know how hypocritical these accusations are.

The Scott County recount was another sorry example of the Hart campaign’s ethics. The recount board there counted the absentee ballots using a method not permitted under Iowa law. The board applied a hand-count standard to some absentee ballots but tabulated the rest by machine. I was personally present for this recount and did everything I could to encourage the board to follow Iowa law. The Hart representative refused and persuaded the third member of the board to join him.

The result was a disaster. The official election returns showed that Scott County had tallied 64,052 absentee ballots. At the end of the illegal hybrid recount, the tally sheet showed 64,183 ballots had been counted. The county auditor (herself a Democrat) told the recount board that its results were wrong. She pleaded with the recount board to run the ballots through the machine again, if for no other reason than to count the total number of ballots present. Hart’s representative and the third board member voted not to do this and forced the erroneous results into the state tally.

The Scott County absentee recount would have a huge effect on what came next. The recount board claimed that Hart gained a net of 30 votes from the absentee tally, wiping out two-thirds of our margin in one spot. This result was untenable. There was no way Hart gained a net of 30 in a county that barely went Democratic as a whole. As a comparison, Miller-Meeks picked up a net of four votes in the Johnson County recount. Johnson County, home of the University of Iowa and Iowa’s most liberal county, went 71-27 for Biden. We were confident that when it was time to contest the election, Iowa judges would see through this and give us those votes back.

No thanks to Hart’s manipulation in Scott County, we limped over the finish line ahead, up by six votes (6!) out of nearly 400,000 cast. On November 30, 2020, a bipartisan panel of state elected officials met and certified Miller-Meeks as the winner.

While the recount was progressing, we were getting ready for someone to contest the election. After the Hart campaign’s manipulation of the Scott County result, we thought that we might have to go to court to get that tossed out. But when Miller-Meeks was certified as the winner, we prepared to be the respondent in the state contest proceeding.

Iowa law creates a special contest court to hear such a case. The court has five members: the Chief Justice of the Iowa Supreme Court and four district court judges picked by the Supreme Court. We knew that the Iowa Secretary of State’s office had been preparing for the contest court to get to work right away (the secretary serves as the clerk of the court). The time period to get the contest done would be short, but we were confident that we could litigate any issues with individual ballots before the December 8 deadline for the court to issue its judgment.

But no state contest proceeding ever happened. Hart’s campaign announced shortly before the deadline to file that it was not going to file a contest under state law. Rather, the campaign said that it would contest the election result before the House. We were stunned. We certainly knew that the House had the power under the Constitution to “be the Judge of the Elections, Returns and Qualifications of its own Members.” But we also knew that the House’s precedents required contestants to have raised claims under state law first. When Hart decided not to go to court in Iowa, this fight shifted from one based on law to one based on politics.

And what a political fight it was. Our message in the contest phase was simple: Hart should have raised her claims in court, not put them in front of her fellow Democrats in Washington. Hart’s legal and political team, aided by friendly reporters and voices on social media, was also simple. They talked endlessly about the 22 ballots that they said should have been counted. Hart also wanted the House to order a full recount of all the ballots, citing the example of the “Bloody Eighth,” an election contest in 1985 where the Democratic majority changed an election result by flagrantly ignoring state law on counting ballots. The congressional recount process stopped after the Democrat had gone ahead by a handful of votes. Many feel that the acrimony from that event lingers in the hyper-partisanship of Congress today.

We knew that we could not afford to get into a fight about the 22 ballots. If we talked about why one or more of these ballots shouldn’t count or how we had other ballots in our favor that we knew about, the politics would have shifted in Hart’s favor immediately. House Democrats would have had the political cover to order a full recount and pick whatever ballot-counting standards were needed to hand the election to Hart. Instead, we focused on Hart’s failure to raise her claims under Iowa law before a contest court and refused to get drawn into a debate about the 22 ballots Hart claimed should have been counted.

Our message discipline was highly effective. Democrats had been highly critical of President Trump’s actions in questioning the outcome of the 2020 election. They looked like hypocrites to allow a challenge to a state-certified election outcome to move forward. One by one, moderate House Democrats shared publicly their reservations about Hart’s contest. Before Hart withdrew her contest, at least eight House Democrats had expressed their reluctance.

I’m not convinced, though, that it was just this that caused Hart to withdraw. More important, in my view, was the looming discovery phase of the contest proceedings. Hart made a shocking request of her fellow Democrats: her lawyers filed a brief requesting that they be permitted to present the testimony of voters by affidavit only. Our campaign would not be permitted to question these witnesses. Not a single reporter covering the election contest wrote a story about Hart’s request to shield her witnesses from scrutiny.

Fortunately, the committee with jurisdiction over the contest had not yet taken Hart up on this request when she withdrew her claim. I believe this was no coincidence. Hart’s lawyers scheduled and then cancelled several depositions of voters just before Hart withdrew. Despite the passage of nearly five months since the election, Hart was struggling to present her case in the form of live testimony taken under oath. In an environment where she would have to prove her claims rather than just have her fellow partisans order a recount, Hart was in serious trouble.

Obviously, I was pleased at this result for my client. But we should all feel this way, regardless of party. Hart asked the House to create a terrible precedent. Majorities come and go. Republicans would have likely felt they had no choice but to retaliate if Miller-Meeks had been unseated. No one should want to see election contests become weaponized by the majority party. Requiring candidates to exhaust their state law procedures first is a neutral rule that both parties should observe.

In the end, the success of our messaging strategy was largely due to its fundamental rectitude. Despite everything that happened during the recount and contest process, I am confident that Miller-Meeks won this election by about the same 47-vote margin that existed when results were originally canvassed. A close result, no doubt – but enough to say that the right person is serving Iowans in Congress.

Alan R. Ostergren is a trial attorney in Des Moines, Iowa.