Attorneys spar at Iowa House election appeal

Lawmakers to decide if they’ll hear from witnesses

By James Q. Lynch, Gazette Des Moines Bureau

DES MOINES — Attorneys representing rival candidates in a contested Northeast Iowa election agreed Wednesday during an Iowa House committee hearing that the issue at stake is not partisan.

“It’s a straightforward application of Iowa law,” said Matt McDermott, attorney for Rep. Michael Bergan, R-Dorchester, who has been declared the winner in House District 55 by nine votes.

Attorney Shayla McCormally also said it’s a non-partisan issue because the 29 absentee ballots her client, Democrat Kayla Koether of Decorah, wants the House to count include Republican, Democratic and no-party voters.

Beyond that, the attorneys found little on which to agree.

The committee heard arguments brought by Koether challenging the Winneshiek County auditor’s decision not to count mailed-in ballots that were submitted without the proper postal marking. Her appeal to the Legislature follows a Polk County District Court decision that the matter should be settled according to House rules.

For Koether, the issue is that all ballots legally submitted should be counted. McCormally argued that 29 of 33 mail-in ballots that have not been counted were mailed ahead of the legal deadline, which is one day before Election Day.

Though the envelopes do not have postmarks, the postal service reviewed its data to show when they were mailed.

“Voting is a guaranteed right” under the U.S. and Iowa constitutions, McCormally said. If the ballots are not counted, the government is “knowingly and intentionally” denying the 29 voters that right.

She also told the panel — three Republicans and two Democrats — that Koether “has a right to have the ballots brought down here and opened.”

McDermott led the panel through an explanation of the postal service’s tracking system as it applies to state law.

Besides relying on postmarks, county auditors are allowed by law to use a tool known as the “intelligent mail barcode” to track the mail-in ballots. However, that system is used in only a handful of Iowa counties — and Winneshiek is not among them.

Without that system or a postmark, McDermott argued, “there is no readily available method for anyone to determine in rational way when a mail piece was put into the system.”

It would be unfair to change how absentee ballots are tracked and which ballots are counted in the midst of an election, McDermott said.

The integrity of elections requires that the state “stick to the rules through the entire process,” he said.

What’s not fair, McCormally countered, would be to not count the 29 ballots in question.

The issue is not tracing, she said. Iowa law does not refer to the post office tracing system. That’s in administrative rules. The 2016 legislation that applies refers to “tracking” — which she argued is what the Winneshiek auditor used to verify that the ballots met the mailing deadline.

It is the responsibility of the voter, McDermott said, to sign the ballot, seal the return envelope and ensure it arrives in the auditor’s office in a timely manner. If not, he said, the ballot isn’t counted.

Democrats argued for calling witnesses to learn more about, among other things, how the ballots were handled to answer “chain of custody” questions. McDermott didn’t think that was necessary or would be helpful.

Chairman Steve Holt, R-Denison, said the panel will later discuss whether to call witnesses.