After Election Day last year, it was Donald Trump’s loss to President Joe Biden that preoccupied the nation. Far less attention was paid to a dispute over the winner of Iowa’s second congressional district. Now the latter is set to draw an outsize share of attention on Capitol Hill—and place congressional Democrats who might resolve it in a no-win scenario.
The first count of ballots in the Iowa race in November found that Mariannette Miller-Meeks, the Republican candidate, led her Democratic opponent, Rita Hart, by just under 300 votes. After a district-wide recount and a canvassing of ballots, that margin had fallen to just six votes in favor of Miller-Meeks. The extraordinarily close result prompted Hart to formally challenge the result before a House committee in December. Her case rested on fewer than two dozen ballots that were, in her eyes, improperly excluded from the final result.
“Of these wrongfully excluded 22 ballots, the evidence establishes that 18 were cast for Contestant Hart, three were cast for Contestee Miller-Meeks, and one did not record a vote for either candidate,” Hart told the committee. “Once those ballots are included in the final tally, Contestant Hart would have 196,976 votes and Contestee Miller-Meeks would have 196,967 votes, giving Contestant Hart a lead of nine votes.” Hart also alleges that Iowa counties took different approaches to recounting ballots, which she claims violates the principle of equal treatment of voters outlined in Bush v. Gore. (Yes, that Bush v. Gore.)
Miller-Meeks, for her part, urged the committee to dismiss Hart’s claim because Hart did not challenge the recount process in a court of law. “If losing candidates can shield their claims from independent judges when the House is controlled by their party, then they will,” Miller-Meeks told the committee in her motion to dismiss. “A parade of contests will in the future proceed here any time there’s a close election and the losing candidate’s party holds the majority in the House. The effect of this gamesmanship will be to severely undermine the public’s confidence in our election process.” Miller-Meeks voted not to overturn the Electoral College results in January.
The two election disputes are wildly different when it comes to procedure. While Trump spent three months trying different legal and extra-legal avenues to secure a second term, the process for contesting House elections is fairly straightforward. The Constitution says that each chamber of Congress is the judge of its own members’ “elections and returns,” meaning they have the sole power to decide who is and isn’t a member of Congress. In 1969, Congress passed the Federal Contested Elections Act to govern how this process actually operates.
Under the FCEA, Hart is making her case before the House Administration Committee, which is tasked with handling House election disputes. To be seated in the House, she must prove not only that the election result was improper but also that she is the rightful holder of the seat. (If the result is indeterminate, the House can instead vote to vacate the seat.) That could be an uphill battle for Hart: Iowa’s results were subject to a recount and then certified by the state’s executive council. And the committee itself only makes a recommendation. To oust Miller-Meeks and install Hart, the entire House of Representatives must vote in Hart’s favor in the matter.
Historically speaking, the member who is sworn into a disputed seat almost always keeps it. In a 2010 report, the Congressional Research Service found 107 instances in which the House heard challenges to election results between 1933 and 2009. “In at least three cases, the House ultimately seated the contestant, and in at least one case, the House ultimately refused to seat any individual, declaring a vacancy,” the report found. “In the majority of the other cases, the contest was dismissed based on reasons including lack of evidence; a determination that voting irregularities, fraud, or misconduct [were] insufficient to affect the results of the election; failure to sustain the burden of proof necessary to award the contested seat to the contestant; and improper initiation of a contest or other procedural failures.”
House majorities have often been large enough to make these challenges unimportant when it comes to control of the chamber. This time, however, things are a little closer for comfort. Democrats currently hold just an eight-seat majority in the lower chamber; there are five seats sitting vacant. That isn’t quite as precarious as the Democratic majority in the Senate, where the chamber is evenly split and Vice President Kamala Harris holds the decisive tie-breaking vote. But it’s a close enough margin to occasionally make things uncomfortable for the Democratic majority.
But practical considerations also aren’t the only issue at play. If Democrats oust a seated Republican lawmaker in favor of their own party’s candidate, they will be effectively supplanting a state’s certified and recounted election results with their own judgment. There are obvious differences between Hart’s efforts and the false and reality-warping claims that undergirded Trump’s attempt at clinging to power. Hart is trying to get ballots counted that she argues were erroneously excluded. Trump tried to throw out legitimate votes for no legitimate reason other than wanting to remain in office. The superficial similarities, however, are proving irresistible for Republicans to highlight.
Last week, Karl Rove wrote an op-ed in The Wall Street Journal titled “Pelosi Might Steal an Iowa House Seat,” in which he suggested that the House speaker would be “tempted to pad” her narrow majority with a “Gilded Age” maneuver, apparently referring to the FCEA process. “Mrs. Pelosi could widen her margin by ousting a Republican congresswoman and installing Ms. Hart,” he warned. “But if she does, she’d divide the House even more bitterly. There will be payback, one way or another. We’ll soon see how desperate the speaker is.” A group of House GOP lawmakers called for some of the committee’s Democrats to recuse themselves last week because Hart is represented by Democratic election lawyer Marc Elias, who has also represented them.
If the committee sides with Miller-Meeks, on the other hand, the Democratic members will effectively be tossing out 22 purportedly valid votes that could decide the outcome of an election. For a party that insisted every vote should count throughout Trump’s war on the election results and is now pushing a major election-reform bill through Congress, Democrats run the risk of not standing by their voters for one of their candidates when it actually matters—and of not ensuring that these votes are counted because of Republican criticism and pressure.
How Democrats will respond to this Kobayashi Maru test isn’t yet clear. Last Wednesday, the committee voted along party lines to postpone consideration of the motion to dismiss filed by Miller-Meeks until it hears her position on the merits of the case. But that vote only delayed the inevitable. At some point, the Democrats on the House Administration Committee will have to vote on whether to move forward with the case. The only question left is which outcome would be worse.