Derek Muller: “Iowa’s Second Congressional District Contest Should Be Dismissed for Lack of Exhaustion of State Remedies”

The following is a guest post from Derek Muller about Iowa’s Second Congressional District Contest:

Iowa’s Second Congressional District is officially one of the closest congressional elections in American history. Congresswoman-Elect Mariannette Miller-Meeks led by 47 votes after the official canvass. After challenger Rita Hart requested a recount in all 24 counties, Miller-Meeks led by just six votes. Miller-Meeks received a certificate of election from the state and will be seated, absent an extraordinary move from the House of Representatives, in the 117th Congress.

Hart has filed an election contest under the Federal Contested Elections Act of 1969. Under the Constitution, each House is “the judge of the elections, returns and qualifications of its own members.” In doing so, however, Hart skipped the opportunity to file an election contest in Iowa courts.

Hart’s lead-up to the election contest was a thaumatrope. On one side, the Hart campaign alleged that not all the votes were counted, and every vote needed to be counted. On the other side, the Hart campaign complained that the time to seek an election contest in state court was too short, so the House was the only mechanism for it. Spinning this thaumatrope, the two claims appeared as a single concern.

But now that the contest has been filed, we see two distinct claims. The first are discrete claims about twenty-two ballots that were not counted that the Hart campaign argues should have been counted, amply within the window of a state court contest to resolve. The second are sweeping claims asking for, effectively, a second recount (or a third count) of thousands of ballots, something a contest court would never have entertained because Hart would have been estopped from raising it.

I’ll provide an overall setup of the dispute, then dig into some of the specific claims Hart raises in the contest. I’ll refer to some of the points in the Notice of Contest, but I’ll also refer to relevant facts omitted from the Notice. But in short, Hart raises two types of claims, and both should be dismissed, in my judgment, on fairly straightforward procedural grounds: the first claim should be dismissed for lack of exhaustion; the second claim should be dismissed for estoppel, waiver, or laches.

The Recount

Iowa’s Second Congressional District spans 24 counties. Recounts, like elections, are fairly decentralized in Iowa. Each of the 24 counties had its own recount board, consisting of a Hart designee, a Miller-Meeks designee, and a third neutral member jointly selected by the other two. I participated as a designee of Miller-Meeks on the recount board in Johnson County, which accounted for more than 20% of the ballots cast in the district. (I would dispute some of the characterizations of our actions as a board, but I’ll save that for another time….)

On November 16, recount boards began to be assembled. They had to complete their counting by November 28.

There are two important factors at play. The first is that the recount boards determined how to proceed with the recount—a machine recount, a hand count, both, or, as was ultimately adopted in part in some counties, a “hybrid” model that used the machines to assist in a hand tally. The second is that, whichever method the board chose, this choice yielded a second count of every ballot in the canvass. Every ballot was examined by some method during the recount.

Because the recount boards consist of designees from each candidate, the candidates have some representation on the board. And the process varied from county to county, sometimes at a campaign’s insistence. Hart designees in some counties, for instance, initiated a request for a machine recount (principally in Republican-leaning counties). Hart designees in other counties initiated a request for a hand count or a “hybrid” count (principally in Democratic-leaning counties).

In Johnson County, for instance, we looked at every single ballot, and in the absentee precinct, I personally laid eyes on every single one of over 61,000 ballots. It was a tough, exhausting process.

The counties proceeded with their own processes. Recounts were completed by November 28, in most places earlier. The results were certified November 30. A contest in Iowa courts could have been filed after certification, and it would need to be wrapped up by December 8.

Hart skipped the Iowa contest court stage, arguing that there was inadequate time to review the record. We can turn to the two grounds in the Notice of Contest.

Ground One: Twenty-Two Ballots

In its first count, the contest identifies two ballots wrongly excluded from the canvass (if the canvass missed votes, the recount board is not able to count those votes under Iowa law), and twenty other provisional or absentee ballots excluded for various defects. Some turn on some rather nuanced interpretations of state law—when a ballot must be “received in the commissioner’s office before the polls close,” for instance, does that mean the commissioner’s office in the county in which the voter is a residence, or any commissioner’s office?

But Congress routinely dismisses contested election claims for failure to exhaust state remedies. Congress typically defers to the state election process. It prefers not to dig into the nuances of state law, or to visit facts for the first time that a state avenue provides the opportunity to resolve first.

Before filing the contest, Hart had claimed a lack of time to go to state court. But that argument, with the filing of the Notice of Contest, looks to fail for two reasons.

First, now that the twenty-two ballots have been identified, Hart has demonstrated that there was ample time for a state court in an eight-day window to review a claim about those ballots. Two of the ballots in dispute were discovered during the recount. Others were rejected on or before Election Day, including those in the special precinct reviewing absentee ballots. The known universe of disputed ballots existed well before November 30, and, upon presentation of the evidence, a court could readily resolve such claims in an eight-day window.

Second, litigants typically don’t get to self-establish that they lacked time. The proper process would be to request the court for a hearing. The court might, might, ultimately conclude that there’s not adequate time to resolve the dispute. Then you have an actual attempt to participate in a timely state process, and a record below about the timeliness of the dispute.

Ground Two: A Second Recount

In its second ground, Hart identifies a lack of uniformity in recount procedures. Because the 24 counties each had a recount board, the boards agreed to the procedures, and the procedures might differ from county to county. That meant while all ballots were recounted, not all had, say, a hand inspection of recorded overvotes (most of which were actually overvotes, but some of which might, on hand review, show an intent of the voter).

But note how I characterized the decisions of the boards above, too—the Hart designees pressed for machine recounts in Republican-leaning counties and hand counts or “hybrid” counts in Democratic-leaning counties. (You can check out the chart at Para. 138 to see the differences, and elsewhere in the complaint the Republican-Democratic divide made explicit in Para. 154.)

Hart instead asks for a complete recount in Congress—effectively, a second recount, or a third count of the ballots.

As a related component of the exhaustion problem, there’s a reason Hart did not raise this ground before the Iowa contest court—and it wasn’t for lack of time. A court could have cited numerous problems with Hart’s request in a court that she failed to raise during the recount process:

Estoppel. Estoppel prevents a party from raising one argument at one stage in the process, then turning course and raising a different argument later. If Hart designees advocated for a process but later ask for a new process, the party is typically estopped from arguing for a new process. (Estoppel is also a reason Congress has raised in its precedents to reject arguments raised by contestants.)

Waiver. Hart could have requested a hand count during the recount process. In many places, Hart designees didn’t. A court might find that constitutes waiver, as the failure to raise at one stage of the legal process precludes a remedy later requested later.

Laches. Hart had the chance to request a hand count much earlier in the process, in mid-November. Instead, she waited too long by requesting a hand count, only after the state certified the election results. Laches bars a party from raising a claim that it should have raised earlier, concluding that the claim is untimely.

These are all viable reasons for a court to toss Hart’s claim. It’s little surprise, then, that she opted to skip the court process that would have ruled against her. It also helps explain why exhaustion is a component of congressional precedent—it allows state courts to adjudicate these claims under state law to develop the record before the contest gets to Congress. It provides Congress with a full legal case.

The Iowa contest court likely would not have been terribly amenable to the request to pursue a second recount (or a third count), but it wouldn’t have been for lack of time. It would have been for procedural bars to the request.


There are probably lots of other interesting things to glean from this contest—facts, law, congressional precedent, and so on. There will be much to write about this dispute in the months ahead. But at first glance, this is my impression: failure to exhaust is a fairly straightforward reason to dismiss this case. Miller-Meeks received the certificate of election at the end of the legal process in the State of Iowa (something I’ve indicated is important in the presidential election contest, too), and she’s the winner of the election.

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