‘We’re going up against people who will be perfectly happy to suppress votes, if it achieves a victory for a Democrat,’ Miller-Meeks’ attorney told NR.
Last November, Mariannette Miller-Meeks didn’t know if she had won the open House seat in Iowa’s second congressional district.
In fact, as her campaign lawyer Alan Ostergren recalls, the first week or so after Election Night was a “crazy sequence of events.”
Miller-Meeks, a Republican making her fourth congressional bid, thought she was ahead by 282 votes over Democrat Rita Hart after the initial returns.
A couple days later, the district convened its special absentee precinct board — “a totally routine thing,” Ostergren says, considering that absentee ballots can come in late and still count, as long as they are mailed the day before the election at the latest. But after a tabulation error was discovered in Jasper County, in the northwest corner of the district, Miller-Meeks found herself in dire straits.
“We think we’re down at that point,” Ostergren recalls of the Monday after the election. “I had to be the one to tell Mariannette, ‘This is what we think happened, and we think you’re down by about 112 votes’ — which is a terrible conversation to have with a candidate, right? Because you think you won and now, poof, it just disappears.”
But that same night, yet another tabulation error was discovered, this time in Lucas County — prompting an influx of previously uncounted ballots that pushed Miller-Meeks back over the edge, with provisional ballots yet to be finalized.
“In our internal tracking we knew we were up more like by about 40, in the high 40s, at that point,” Ostergren says. “And in the final tabulation of everything we were up by 47 votes. So now we think we’ve won, and now we’re going to be defending a recount instead of asking for a recount.”
In other words, figuring out the winner of a close election isn’t a cakewalk. But in the end, the state process usually bears itself out.
That’s why Ostergren found it “cynical” that Democrat super-lawyer Marc Elias tried so hard to circumvent the system. He points to Hart’s and Elias’s strategy of requesting a district-wide recount — but taking the recount process out of the Iowa courts and handing it over to a Democrat-run panel at the U.S. House of Representatives — as the epitome of cynicism.
In their plea to Congress in December, Hart’s campaign said that the district’s original recount, which gave Miller-Meeks a six-vote lead, was applied inconsistently because different counties used different standards. But Ostergren says that discrepancy was instituted by the Democrats.
“Our strategy [for the recount] was the only way to really do this in a way that’s even-handed and fair, is to ask for a machine recount in all the counties,” he explained. “And what quickly became apparent was the Hart campaign, they agreed to machine recounts in rural Republican counties, and in the urban counties, they wanted hand recounts.”
“If you were going to apply that standard — that hand-count standard — district-wide, that would mean you’d go back and look with much more scrutiny in Republican-leaning counties,” he continued. “The reality is that process was never going to produce a greater net margin for Rita Hart. It was just the way to drag it out and give opportunities to manipulate the process.”
Such inconsistencies, especially with absentee ballots, led to bizarre situations such as the one that unfolded in Scott County, the largest in the district, where the hybrid-recount approach led to the counting of 131 more absentee ballots than there had been in the original canvass, with no new ballots discovered along the way.
But when the county auditor, a Democrat, asked the recount board to get to the bottom of the discrepancy — “Let’s figure out, did you read the total number of ballots correctly, or have you been double counting ballots as they go through and throwing off these totals?” — Ostergren recalls, “The Hart campaign representative was adamantly opposed to doing that.”
After the recount board elected to ignore the problem and move on, Hart campaign manger Zach Meunier called the affair a “careful, thorough, bipartisan recount.” It also gave Hart a 26-vote margin — flipping 30 votes and eliminating the four-vote lead that Miller-Meeks enjoyed following the Election Day recount in Scott County.
This week, Hart’s campaign dropped its case, which centered on 22 contested ballots, with the House Administration Committee. The move came after complaints that Democrats were trying to “steal” the seat, and moderate House Democrats expressed skepticism about the process. But in the end, the outcome did not surprise Ostergren.
“What carries through all of Marc Elias’s work in this case is this sort of indignant attitude that ‘if the ballot’s in the box, it counts, no matter what,’” he states. “And that’s not how it works. You have to actually show that this ballot has not already been counted, it was received on time, that the rules have been followed. Because otherwise, I mean you just, you actually frankly incentivize stuffing things in a ballot box and just figuring nobody’s going to care in the end.”
“Their factual and legal theories were deeply cynical,” he goes on to say. “They are perfectly content to suppress a vote from a Republican. There will be a great hue and cry if following the rules means a ballot cast for a Democrat doesn’t count.”
Ostergren points to the Hart campaign’s recount effort in Johnson County — home to the University of Iowa and “the bluest of blue counties in the state” — as an example.
“At the local level, there’s lots of races where Republicans don’t bother fielding a candidate because it’s totally hopeless at the local level; all those races are decided in the primary,” Ostergren explains. But as the fourth-largest county in the state, Johnson still has a significant number of active Republicans.
“So you have frustrated Republicans in Johnson County who don’t have any Republicans to vote for who expressed this frustration by, in the write-in line on their ballot, writing the word ‘Republican,’” he says.
But Elias and the Hart campaign moved to throw out five such ballots cast by voters who wrote in “Republican” but also checked the box for Miller-Meeks.
Elias argued that those ballots had violated a rule against “identifying marks” — which are “a comment or statement that indicates the identity of the voter either individually or as a member of a group,” per state law, and historically were used in pay-to-vote schemes. The Johnson County recount board ultimately voted 2–1 in favor of throwing out those votes.
“When Mark Elias walks round and calls Republicans ‘vote suppressors.’ It’s a filthy lie. It’s projection,” Ostergren states. “He is perfectly content to have his people out, objecting to ballots — I mean the voter’s not trying to say, ‘This is who I am, pay me for voting this way,’ the voter is clearly saying ‘I’m a Republican, I want to vote for Republicans in all these races.’ So when he indignantly talks about how Republicans don’t care about voters and all that stuff, it is a vicious filthy lie, coming out of his mouth.”
So why the abrupt about-face from the Democrats? Ostergren says the timing suggested that Elias and his team “knew that their proof was not going to come together.” He points to an admission that Elias made in a March 22 filing to House Administration Committee chairwoman Zoe Lofgren (D., Calif.), who asked the Hart campaign to explain how it discovered the 22 ballots in question. Elias responded by saying the campaign knew of them by December 1 — one day before the deadline to file a state challenge.
“They knew something about all these ballots in time to raise them in front of an Iowa contest court,” Ostergen says. “And, you know, certainly, we would have been working really hard during that time period. But the idea that we could not have litigated, in front of a panel of judges, 22 ballots?”
Ostergen argues that by avoiding the court, however, Elias actually got the best of both worlds.
“He gets to protect his case from any kind of factual and legal scrutiny, and prevents us from putting out any facts that would show they know that they manipulated that Scott County number,” he says. “So then he could drive that narrative, ‘It’s only six votes and we have 22 ballots,’ which is just deeply misleading.”
So what can Republicans learn from the whole episode? Ostergen thinks an important strategy for Republicans in the future is “to be completely unwilling to concede the narrative,” as well as “having good message discipline and having a good message.”
“We’re going up against people who will be perfectly happy to suppress votes, if it achieves a victory for a Democrat. And so we need to push back very, very hard on that,” he said. “. . . We sold a product that made total common sense: that you should go to court to settle these disputes, rather than your own political party. The message is an excellent one. The messages is inherently a true one. And some discipline in how you communicate that, really, really works.”