Five weeks after the election, the definitive winner of Iowa's 2nd Congressional District remains in question and the closest congressional race in decades may be headed to a decision by the Democratic-controlled U.S. House of Representatives.
Republican state Sen. Mariannette Miller-Meeks of Ottumwa was declared Congresswoman-elect after state officials last week officially certified the election results. Miller-Meeks edged out Democratic former state senator Rita Hart of Wheatland by just six votes out of more than 400,000 cast following a district-wide recount in all 24 counties requested by Hart.
Hart's campaign on Wednesday, Dec. 2, announced plans to file a petition with the U.S. House Committee on Administration challenging the outcome and asking for a full review of all ballots cast in the race, bypassing Iowa courts.
The Hart campaign has defended its decision, arguing Iowa state law does not allow for sufficient time to review the number of ballots it believes should be reviewed.
Hart had until the afternoon on Dec. 2 to contest the state-certified results in state court. That would have thrown the race to a five-member judicial tribunal presided over by the Chief Justice of the Iowa Supreme Court that would have been required to rule on who won the race by Dec. 8, per state law.
Iowa Republicans criticized the Hart campaign for choosing to appeal the election results in the U.S. House rather challenging the results in Iowa court, taking the decision out of the hands of impartial judges and subjecting the outcome to partisan politics.
The Hart campaign argues thousands of legally cast ballots were not considered for various reasons during a district-wide recount in all 24 counties. That includes 35 ballots from military members and other Iowans living overseas that were not counted in Scott County due to a scanning error, as well as thousands of ballots that were not examined consistently across all counties during the recount.
Per state law, recount boards may consider only ballots considered on Election Night, even if the board is made aware of ballots excluded from the initial count.
Hart's campaign, too, argues a thorough recount of all ballots was hampered by glitches in multiple counties in the initial count of votes after the election, along with inconsistent processes across the 24 counties in the district. Some counties did complete hand recounts, some did complete machine recounts, and some, including Scott County, did a hybrid version of both.
Why the U.S. House?
Under the U.S. Constitution, Congress has the express authority to judge the "elections and returns" of its members. While challenges and recounts are initially conducted by states under their authority to administer federal elections, Congress serves as the final arbiter.
Hart's campaign and Democrats, including retiring seven-term Democratic Iowa 2nd District U.S. Rep. Dave Loebsack, argued a review in the U.S.House of Representatives provides more time and flexibility for a full recounting to ensure every vote was properly counted.
"After all, if the 72 members of the recount boards could not do that in the time they had for the recount (18 calendar days, including the Thanksgiving holiday), then the five members of a judicial panel could not do it in less than a week," Gary D. McKenrick, of Low Moor, co-chair of the Hart for Congress Campaign Committee wrote in a Quad-City Times guest column.
How often has this been done?
According to the U.S. House Committee on Administration, it is not unheard of but uncommon for Congress to intervene in a U.S. House election.
"We get contested elections filed every election cycle, but less common for the committee to take up a petition," committee Communications Director Peter Whippy said.
There were 107 contested election cases considered in the U.S. House since 1933, according to the Congressional Research Service. The last was in 1985, when the Democratic-controlled House voted to seat Democratic incumbent Frank McCloskey after its recount determined he had won Indiana’s 8th Congressional District by four votes. The move nullified the state's certification of his Republican challenger as the winner.
The vast majority of these cases were resolved in favor of the member-elect whose election was challenged, per the CRS.
In at least three cases, the House seated the contestant, and in at least one case, the House refused to seat anyone, declaring a vacancy.
However, most contested elections were dismissed by the House, either for lack of evidence; failure to prove voting irregularities, fraud or misconduct sufficient to affect the results of the election; or for procedural failures.
What are the next steps?
Hart had 30 days from the state certification of the election results on Nov. 30 to file a petition with U.S. House. Doing so would trigger a proceeding in front of the House Committee on Administration that would allow the campaign to offer testimony and evidence.
Miller-Meeks would then have 30 days to respond to the petition, including establishing any defense or filing a motion to dismiss.
The committee could decide to dismiss the petition; proceed based on pleadings, testimony and evidence introduced; conduct a preliminary investigation or a limited recount to determine if there are grounds for a full-scale investigation and/or recount; order a full-scale investigation, including a recount.
The House could also direct the committee by resolution to conduct its own investigation and recount, a process that in the past has included reviewing election records and examining disputed ballots.
Hart would have to prove to the committee that a recount would "show substantial fraud and irregularity, change the result of the election, and make ... her the winner," per the CRS.
Should the committee decide to hear a petition, it would appoint a three-person task force to investigate the election. Parties would have up to 70 days to take testimony by deposition to be presented as evidence.
After completing its investigation, the committee will file a report with the full House with a recommendation -- subject to simple-majority approval of the House -- on which candidate should fill the seat, or find that neither are entitled to the seat and declare a vacancy.
Will Miller-Meeks be sworn in Jan. 3?
Most likely, but it's up to the House.
Of the 107 contested election cases considered by the House since 1933, in at least 15 cases, the member-elect was asked to "step aside" or "remain seated" while the oath of office was collectively administered to the other members-elect, per the CRS. In at least two instances, the member-elect was subsequently administered the oath on a provisional basis. In at least two more cases the House declined to administer the oath of office until after the committee had conducted an investigation and issued a report.
In the remaining 11 of the 15 cases, the House adopted a resolution providing merely that the member-elect "be now permitted" to take the oath of office, with no specific reference to final determination of the right to the seat.
House Parliamentarians in the past have said the seating of a member-elect does not prejudice a contest pending under the Federal Contested Elections Act regarding the final right to a seat, per the CRS.
"(It) is only in 'the most extraordinary of circumstances' that a member-elect holding a certificate of election would be denied the opportunity to take the oath of office," per the CRS citing the House Committee on Administration.