18,000 Ballots At Stake: Rita Hart For Iowa Calls On SOS To Clarify Recount Guidance

IA-02 recount update from Rita Hart campaign

Rita Hart for Iowa Calls on Secretary of State to Clarify Recount Guidance

More than 18,000 ballots would go unexamined if directions about complying with Iowa law not clarified

WHEATLAND, IOWA — This afternoon, as several counties began the recount process, Rita Hart for Iowa issued a letter to the Iowa Secretary of State requesting clarification on guidance issued by his Office yesterday that appears to have been interpreted by recount boards in a manner contrary to Iowa law.

After the initial canvass in the Second Congressional District, fewer than 50 votes separated the two candidates. More than 200 identified overvotes and 18,000 undervotes in the district have yet to be examined for voter intent. Due to confusion around the Secretary of State’s guidance issued yesterday, the thousands of overvotes and undervotes that are at issue in this recount, would go unexamined.

Rita Hart for Iowa has given the Secretary of State’s Office until 6:00 p.m. CT on Wednesday, November 18, 2020 to respond.

**full text of the letter below

November 18, 2020

Via E-Mail

Paul Pate
Iowa Secretary of State
First Floor, Lucas Building
321 E. 12th St.
Des Moines, IA 50319

Paul.Pate@sos.iowa.gov

Heidi.Burhans@sos.iowa.gov

Molly.Hammer@sos.iowa.gov

soselections@sos.iowa.gov

RE:  Request for Clarification of Recount Guidance in Iowa’s 2nd Congressional District Recount

Dear Secretary Pate:

As you know, my client, Rita Hart, has requested a recount of all 24 counties in Iowa’s Second Congressional District. Ms. Hart requested this recount due to the well-publicized tabulating incidents discovered in Jasper and Lucas counties and the apparent improper rejection of lawful votes in the initial count and canvass.

Unlike states that utilize a significant number of government staff persons and/or civic volunteers to conduct recounts, Iowa law requires a three-person recount board to conduct the recount in each county, regardless of the county’s size or the number of ballots being recounted. Some of these all-volunteer boards are already diligently working to complete their recounts by November 30, 2020. However, certain guidance issued by your office yesterday, November 17, after those recounts had already begun, appears to have led the boards to interpret your guidance in a way that may be contrary to Iowa law.

In pertinent part, the guidance from your office says that “after the machine count for a precinct, the Recount Board may conduct a hand recount in that precinct if it reported either undervotes or overvotes on Election Day and after the machine recount.” We understand that some counties and recount boards interpret this guidance to mean that they cannot apply the law’s voter intent standards to any ballots in a precinct where a machine recount is being conducted, unless the board conducts a full hand recount of all the ballots in that same precinct. This is significant because of the unusually large number of absentee ballots in this election (which the counties generally treat as a single “precinct”), and because of the likelihood that these ballots contain valid votes for the candidates which a machine recount will not detect.

We understand that some boards are reading your guidance to mean that they may only:

  1. conduct a machine recount, conduct no hand count, and thereby ignore all ballots containing undervotes and overvotes, which means that ballots with lawful votes will not be counted;

  2. undertake a full hand recount of every ballot in a precinct; or

  3. conduct a machine recount and a full hand recount of every ballot in a precinct.

After the initial canvass in the Second Congressional District, fewer than 50 votes separated the two candidates. There are more than 200 identified overvotes and over 18,000 undervotes in the district. Unless you clarify your guidance, it is practically certain that the recount will disregard more than 50 lawfully cast ballots with clear voter intent, in violation of Iowa law. There are enough ballots at stake here to decide the outcome of the election.

Because Iowa law clearly requires the voter intent standards to be applied in the event of a machine recount, and because it permits recount boards to conduct machine recounts, you should clearly instruct the recount boards to take the necessary steps to ensure these ballots are identified and appropriately counted.

Specifically, you should make clear that the boards conducting a machine count in a precinct:

  1. use the voting machine to count all votes that are cast using the prescribed method—that is, filling in the oval next to their preferred candidate;

  2. use the voting machine to identify the ballots which contain an overvote and the number of ballots that the machine thinks do not contain any votes in the race (undervotes);

  3. sort by-hand the batches of ballots that were sent through the voting machine to find all ballots containing overvotes and undervotes;

  4. visually analyze every ballot with an overvote and undervote to determine whether the ballot contains a lawful vote for a candidate in the race based on Iowa’s voter intent standards; and

  5. update the machine recount tally accordingly.

Making this clarification is necessary and critical. As noted above, there are over 18,000 undervotes in the Second Congressional District race. More than 7,000 of those undervotes (or about 39 percent of all undervotes in the race) are in Scott and Johnson Counties alone. And in the absentee ballot precinct in Johnson County, there are over 58,000 ballots. In Scott County, there are over 61,000 ballots in its absentee ballot precinct.

Such a clarification would be consistent with Iowa law on voter intent standards. The Secretary of State has promulgated regulations that “apply to all optical scan voting systems in use in Iowa.” IAC 721-26.10. One regulation expressly specifies that a vote “shall not be rejected solely because a voter failed to follow instructions for marking the ballot.” IAC 721-26.15. The rules specify also that if a voter’s choice is clear, the vote “shall be counted as the voter indicated.” IAC 721-26.15(1). Subsequent regulations provide an example of markings that a voting machine would read as undervotes or overvotes but actually express voter intent that must be counted. See e.g., IAC 721-26.18 (examples depicted above). Moreover, “[a] voter’s definite choices shall be counted even if the recount board determines that the voter’s choices differ from the votes as counted by the tabulating device.” IAC 721-26.104(3). The examples of how to interpret voter intent in the Iowa Administrative Code (https://www.legis.iowa.gov/docs/iac/rule/08-01-2007.721.26.18.pdf) illustrate voters who failed to follow the ballot directions but who cast votes that must be accepted and not rejected.

Further, the state’s regulations are all found under the portion of the Iowa Administrative Code relating to “Optical Scan Voting Systems,” meaning that the voter intent standards are meant to supplement a machine count, not to serve as an alternative. Recount board members conducting machine recounts must review overvotes and undervotes by hand for voter intent. If they do not, they will fail to comply with Iowa law by failing to count votes when the voter’s choice is clear based on the voter intent standards. Votes will certainly—and unlawfully—be rejected simply because the voter failed to follow directions. A recount board cannot ignore these voter intent standards, as some appear to be reading your guidance to require. Rather, the recount boards must apply the voter intent standards as a supplement to a machine recount to ballots containing overvotes and undervotes.

Recount boards that supplement their machine recounts with by-hand analysis of all ballots with undervotes and overvotes will best be able to carry out their duty to apply these voter intent standards while counting “as expeditiously as possible.” Iowa Code § 50.48(4)(a). It will also ensure that voters who live in large counties are not treated differently than voters who live in smaller counties. The law provides for countywide recounts. For that to be more than an empty promise, recount boards must have the opportunity to conduct such recounts and consider the voter intent of all ballots to be counted. The only way that will be possible here is if county recount boards supplement a machine tally with by-hand analysis of the ballots containing overvotes and undervotes excluded from the machine tally, rather than conducting a full hand recount of that entire precinct after the machine recount is completed.

For the above reasons, Rita Hart for Congress requests that you issue supplemental guidance making it clear that recount boards, when conducting a machine recount in a precinct, should (1) use voting machines to count all votes that are cast using the prescribed method—that is, filling in the oval next to their preferred candidate; (2) use voting machines to identify the ballots which contain an overvote in the Second Congressional District race and the number of ballots for which the machine does not record a vote—the undervotes; (3) identify which ballots contain overvotes and undervotes by sorting by hand the batches of ballots that were sent through the voting machine; (4) visually analyze all identified overvote and undervote ballots to determine whether they represent a lawful vote for a candidate; and (5) update the machine tally accordingly.

Please provide your response to this letter by 6:00 PM CT today, November 18, 2020.

Thank you,

 Shayla McCormally
Attorney at Law

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