Barely a month ago, Republicans pushed the country to the brink of crisis with a radical theory of American elections. Dissatisfied with certain states’ certified electoral results, President Trump’s supporters argued that Congress should simply sweep inconvenient results aside and decide those outcomes on its own.
Their gambit had no real prospects, but immense costs. Some of the costs are obvious: the death and destruction of January 6; the still further breakdown of Congress as a deliberative body; and the delegitimization of state election laws and procedures, at least in the eyes of partisans who lost according to those rules. But other costs will not be felt until future elections, destabilized by the belief that Congress could become not just a product of our elections, but a decider of those elections—the most hotly contested ones—in the first place.
And, astonishingly, that is what a Democratic candidate for the U.S. House of Representatives is arguing right now, in a petition for the House to negate Iowa’s certified election results. The candidate is Rita Hart, who lost the race for Iowa’s 2nd Congressional District. Iowa certified the result two months ago, after a recount. Now she is asking Democrats and Republicans in the House to nullify Iowa’s electoral process and run the election themselves.
Hart lost the race to Mariannette Miller-Meeks; they were competing to succeed Dave Loebsack, the retiring Democratic incumbent, to represent southeastern Iowa. When the district’s counties completed their original vote tallies on November 10, Miller-Meeks had won by 47 votes out of 394,383 votes cast.
Two days later, Hart requested a recount, which the district’s 24 counties carried out in Iowa’s standard recount process under Iowa and federal law. Each county had a three-person recount board; each campaign designated one member, and the third was designated by those two members or, if deadlocked, by the local court’s chief judge. And the actual process for recounting votes—by hand, by machine, or a hybrid—varied from county to county, depending on the preferences of each county’s recount board’s members. Professor Derek Muller, an election law expert at the University of Iowa (and a member of the Johnson County recount board, designated by Miller-Meeks), described how it worked:
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 recount process seems to have been most exhaustive in the counties that were most likely to favor Hart, as Muller notes and as the lawyers for Miller-Meeks argue in a recent legal brief:
Hart took full advantage of [the process’s county-level] flexibility. Through her designees, she decided the process would not be the same in each county. In 14 of the 24 counties, all rural and where the outcomes favored Miller-Meeks, Hart’s designees advocated for or agreed to a machine recount. In the other counties, especially the more populous ones where the outcomes appeared to favor Hart, Hart’s designees pushed for and usually received some form of manual recount or hybrid process where the board members reviewed ballots that had registered as “undervotes” or “overvotes.”
But Hart still came up short. After two weeks of recounts, Miller-Meeks was ahead by six votes, so the state certified Miller-Meeks as the winner. Despite Hart’s ongoing protest, Speaker Pelosi and the House of Representatives provisionally seated Miller-Meeks as a newly elected member of Congress.
Even after Iowa’s searching recount process, Hart asserts that 22 more votes should be added to the totals—votes that were not counted in the original canvas (and thus not in the recount either), but which if counted would allegedly suffice to hand the victory to her. She alleges that the ballots were not originally counted due to a variety of personal or mechanical errors—an absentee ballot signed in the wrong place, absentee ballots with faulty security seals, curbside ballots that were not accepted by the voting machine, and more.
By Hart’s own account, these alleged problems were all evident in November, before Iowa’s deadline for certifying the result. Yet instead of promptly raising these issues in Iowa’s courts, where they could be quickly adjudicated by a neutral judge under Iowa law and the Constitution, Hart and her lawyer took a very different approach: They waited three more weeks and then appealed directly to the House of Representatives itself, asking the House to nullify Iowa’s own election process.
The dispute is now pending before the House’s Committee on House Administration, pursuant to the Federal Contested Elections Act. In her opening brief, Hart calls on the House to declare that Iowa’s certified results “are null and void” because they “failed to account for every lawful vote by eligible voters.” It further calls on the House to “conduct a hand recount of every ballot . . . in order to determine true voter intent and ensure that every lawful vote is counted,” and to declare that “Hart is entitled to a seat” in Congress. (She also asks to be reimbursed for her costs in pursuing this challenge, including her lawyers’ fees.) She declares that the House should do this because the Constitution’s Article I, Section 5 provides that each house of Congress “shall be the Judge of the Elections, Returns and Qualifications of its own Members.”
Miller-Meeks and her lawyers have not yet responded to the factual issues in Hart’s challenge; they have not yet weighed in on the alleged validity of the 22 votes that Hart is claiming, nor have they yet offered any views on other votes that would be included in Hart’s sweeping do-over even though they were not originally counted in Iowa’s electoral process. Instead, they filed a motion to dismiss, arguing that the House should not hear the case at all, because Hart failed to “exhaust” the normal process that was available to her in Iowa courts, under Iowa law.
Hart’s response to that motion, filed this past Tuesday, is astonishing. Mocking Miller-Meeks for “attempt[ing] to hide behind process,” she declares that the House should simply sweep aside Iowa’s electoral process and reward Hart’s decision not to file timely challenges in Iowa state courts, because such procedural rigor would “intrude upon the House’s constitutional prerogative of judging the elections of its members.”
This is not the first election dispute ever to reach the House, and Miller-Meeks’s lawyers cite precedents in which the House refused to hear cases when the challenger did not exhaust his normal remedies in the states. As Muller notes, “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.”
To this, Hart argues that exhaustion requirements should be limited to the state’s voting and vote-counting processes, and not to the state judicial process surrounding those processes. She also argues that the House allowed a contest like this to proceed in the 1996 elections, when Rep. Bob Dornan successfully convinced the House to hear his case even though he had not exhausted every state-level option. (The House ultimately dismissed Dornan’s case.)
But then Hart goes one step further, arguing that even if House precedent generally includes an exhaustion requirement that bars her case, then the House should simply nullify those precedents, because they are (and here she quotes a report from the Congressional Research Service) “not necessarily binding in a legal sense.” Instead, she argues, members of Congress should simply press ahead with a total nullification of Iowa’s certified results, and undertake a completely new recount of Iowa’s election pursuant to processes and standards of the House’s own ad hoc making.
As wrongheaded as Hart’s gambit is, she is right about that one point: In the end, the House is not “bound” by precedent. Precedents can be instructive, but ultimately the House has to carefully decide what its constitutional powers and duties entail.
That decision starts from the specific constitutional provision: Article I, Section 5, recognizing the House as “the Judge of the Elections, Returns and Qualifications of its own Members”—a provision that may well empower the House to exercise some discretionary judgment, though with no indication that the Founders intended for Congress to simply re-run elections from scratch whenever a candidate opts not to actually use the state’s own neutral, well-established processes. And on that point, of course, the Constitution also puts the states front and center: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The Constitution does add that Congress can “by Law make or alter such Regulations.” Hart, so keen to avoid Iowa’s laws governing the courts’ role in elections, would have Congress “alter” Iowa’s laws by simply doing away with that part of Iowa’s election laws altogether. Is Congress really so keen to wipe away so much election law with the swipe of a hand?
We should hope not, in light of not just our constitutional system as a whole, but also in light of recent events. Trying to turn Congress into a national election board proved disastrous last month; and while a single congressional race might not seem to raise the same stakes as a presidential contest, Congress must take the longer view: If it grants Hart’s request to nullify Iowa’s entire process for adjudicating ballot disputes, then it will invite similar petitions from every other losing candidate who happens to be a member of the party that controls the House at a given moment.
Hart might point out that the constitutional provision for presidential elections is not precisely the same as its congressional elections: In presidential elections, the vice president, before the House and Senate, “count[s]” the certified electoral votes; in congressional elections, the House and Senate can each “judge” its members elections. This might well be a distinction with a difference; but that is not to say that it is a distinction with a great difference, especially when Congress long ago established that its role in counting electoral votes necessarily requires at least some judgment, however limited, as to what counts as a legitimate “vote” under the Constitution. Mercifully, Congress construed that power narrowly—in the last presidential election, and in the previous ones. They should take a similar approach with this congressional election.
Hopefully Rep. Zoe Lofgren, who chairs the Committee on House Administration, recognizes the stakes. When members of Congress objected to Arizona’s electoral votes last month—when Ted Cruz, like Rita Hart now, argued that Congress should investigate a state’s election and count up the real votes—Rep. Lofgren made an impassioned plea for Congress not to nullify the state’s own electoral process:
Madam Speaker, this day marks a crossroads for American democracy. Those who object to the counting of the electoral college votes, which reflect the votes of the American people, want to substitute their preferences for the voters’ choice. That is not what our Constitution requires, and it is at odds with our American democratic Republic.
If Congress selects the next President instead of the American voters, we would have no need for an electoral college. In fact, we would have no need for Presidential elections at all. We would be moving from a government elected by the people to a government selected by those already governing.
Yet here we are again. Hart and her legal team want the House to assert a broad power to negate state election laws after the fact, giving the dissatisfied candidate an opportunity to recount the election according to Democratic and Republican congressmen’s own opinion of “true voter intent.” Hart’s case would not be the last for Congress to decide, but the first of many.
Hart’s legal briefs are replete with invocations of Congress’s constitutional power. Iowa’s election laws, she argues, would “frustrate” the House’s “independent” judgment—its “constitutional prerogatives.” Of course, the present political era is also replete with such invocations—from President Trump’s claims of unlimited pardon power, to Senator Cruz’s argument on January 6 that the Constitution and the Electoral Count Act empower Congress to “make a conclusive determination, whether and to what extent this election complied with the Constitution and with federal law.”
But what we saw in that moment, and so many other moments in recent years, is that members of Congress—and presidents, and all of us—need to worry not just about powers, but also about prudence; not just about Congress’s “prerogatives,” but also about Congress’s responsibilities for the constitutional system as a whole. We don’t lack for partisans willing to wield constitutional provisions like weapons against their political opponents; but what we need are statesmen capable of constraining themselves, for the sake sustaining of our constitutional institutions.
On January 6, Rep. Lofgren ended her speech with a call for Congress to respect the states’ electoral processes, for the sake of our constitutional system. “In that spirit,” she urged, “I urge my colleagues to uphold the American democracy and reject the objection.” In the same spirit, let’s hope that she and her colleagues reject this latest objection, too.