The chambers of the Iowa Senate and the Iowa House of Representatives are silent after a busy 2021 session.
Lawmakers teed up bills that addressed a wide assortment of problems, real or imagined.
They decided against an increase in tax revenues for the three state universities. They took away authority of local governments to impose face-mask requirements to combat current or future diseases. They made significant changes in the process for creating charter schools, which will operate with state tax money but will not face many requirements public K-12 schools must follow.
And they rewrote large portions of Iowa’s election laws. There are new restrictions on the use of absentee ballots. Election Day voting hours have been shortened by one hour.
But lawmakers went home without tackling a big inconsistency in how election recounts are conducted.
This issue came into focus as the outcome of the U.S. House race between Mariannette Miller-Meeks and Rita Hart dragged on for nearly two months after the November election. Miller-Meeks ultimately was declared the winner by 6 votes — 196,964 to 196,958.
In the opening days of the Legislature’s 2021 session, lawmakers talked of the importance of making election procedures more consistent across Iowa’s 99 counties. A lack of consistency contributes to public doubts about the fairness and sanctity of our elections, they said.
However, there were no similar concerns voiced, nor any debate held, about inconsistencies in the multiple recounts that occurred in the race between Hart and Miller-Meeks. That’s unfortunate, because 24 counties make up the 2nd Congressional District, and those 24 counties’ election officials did not follow the same process for recounting the ballots cast in their counties in the House race.
University of Iowa law professor Todd Pettys was one of three members of the recount board in Johnson County. He was selected by the two other members, one of whom was chosen by Hart and one who was picked by Miller-Meeks.
Pettys provides an important analysis of the flaws in Iowa’s recount law in a recent article for the Iowa Law Review.
The recount procedures rarely have a bearing on the outcome of elections, because the vote margin between candidates typically more than offsets any tabulation mistakes.
But in a close-as-a-whisker race like we saw in the 2nd District, the procedures can determine who wins and who loses. That’s why Iowans, regardless of their political affiliation, should be disappointed the Legislature walked away without clarifying this important statute.
One concern deals with the rapid completion Iowa law dictates for a recount. The law permits only one three-member recount board in each county — regardless of whether it is Polk County, with 479,600 residents, or Adams County, with 3,600 residents.
Another concern is the procedure each recount board decides to use to conduct its work. The current state law states, “The recount board may request that the ballots be recounted by machine, may count the ballots by hand, or may do both.”
It is stunning that lawmakers who preached about consistency in how elections are conducted would find it acceptable to leave it to each recount board to decide how to carry out its work.
“Whether human eyes in each county would indeed scrutinize the ballots, however, was a matter that each county’s recount board had to decide for itself,” Pettys wrote.
Based on his experience with the Johnson County recount, Pettys added: “A machine recount would do little or nothing to reveal whether the machines were failing to count humanly perceptible votes for Hart or Miller-Meeks. A hand count, in contrast, would enable a recount board to dig beneath the machines’ tallies of under votes and over votes, but that approach would present drawbacks of its own.”
The recount boards need to evaluate and rule on what election officials call “under votes” and “over votes”. These are ballots where the voter may have marked too many candidates (an over vote) or did not mark any candidate (an under vote).
The counting machines might not have properly counted a ballot where there is a stray ink dot — called a “hesitation mark” — where the voter’s pen paused momentarily while the person considered the next candidate. Or, the machines might have discarded a ballot because of where the voter marked their choice for each office.
And the tabulating machines’ work can be affected by the presence of what are called “identifying marks” on some ballots. Those might be where a voter changes their mind or makes a mistake and scribbles through the incorrect vote and darkens the oval next to the candidate they prefer.
The Legislature needs to make it crystal clear how the recount process is to be carried out. There should be no room for recount officials in one county not looking at the ballots but merely running them through the tabulation machines, while recount officials in another county make a visual inspection of every ballot and count each one by hand.
Whether your vote gets counted or disqualified should not depend on where in Iowa you live. The recount process and procedures need to be the same in every county.
Pettys puts it this way: “Even more important than the outcome in any particular race is the principle that, when elections are exceptionally close and recount boards are called into action, every eligible Iowan’s vote deserves to be counted unless there are weighty reasons to disregard it.
“Some election rules in place in Iowa today fall short of meeting that mark.”
Randy Evans is executive director of the Iowa Freedom of Information Council and can be reached at DMRevans2810@gmail.com. Pen City Current is a member of the IFOIC.