Joshua A. Douglas is a professor at the University of Kentucky’s J. David Rosenberg College of Law who specializes in election law, voting rights, and constitutional law. He is the author of “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” Follow him @JoshuaADouglas. The opinions expressed in this commentary are his own; view more opinion at CNN.
Amazingly, the 2020 election is not yet over. There is still a disputed congressional election from Iowa that is making its way through Congress. Although every valid vote should count, the continuing contest shows once again the dangers of a political environment in which losing candidates refuse to accept defeat.
The Iowa dispute involves a margin of just six votes, with 22 ballots in dispute. On November 30, state election officials certified Republican Mariannette Miller-Meeks as the winner over Democrat Rita Hart. Although Miller-Meeks was sworn in on January 3 (albeit “provisionally,” pending the outcome of the contest), Hart continues to challenge the results.
Joshua A. Douglas
Unlike the presidential election, which President Joe Biden overwhelmingly won by tens of thousands of votes in several key swing states, the margin in this Iowa election is merely six votes out of just under 400,000 votes cast. And Hart’s campaign claims that if election officials count the 22 disputed votes — which were not included due to various issues with the ballots — she will win by nine. So those ballots could decide the winner.
But instead of going to the courts or another arbiter that the public might accept as neutral, Hart chose to contest the election in the Democratic-controlled House itself. That is her legal right, but asking an explicitly partisan body to overturn the certified results of an election to seat a member of that party can undermine people’s faith in the democratic process.
Every state has a procedure within its laws to contest an election. Iowa law, for instance, provides for the creation of a special five-member court comprised of the chief justice of the state supreme court and four district court judges that the supreme court selects. The court’s judgment then determines the winner.
Minnesota law — invoked in the Republican Norm Coleman versus Democrat Al Franken disputed 2008 US Senate election — directs the state Supreme Court to create a special three-judge court to make a determination. In that 2008 dispute, the Minnesota Supreme Court explicitly chose three judges of various political persuasions, who ruled unanimously in favor of Franken. The Minnesota Supreme Court then unanimously affirmed that decision.
Other states create special tribunals, like the New Hampshire Ballot Law Commission, which includes two members of each political party selected by the leaders of each house of the state Legislature, with a fifth person, who must be an expert in election procedure, appointed by the governor.
Nonetheless, Hart did not pursue a state remedy in Iowa. She decided instead to go directly to the House of Representatives — the very body she seeks to join, and one which her own party currently controls.
The US Constitution ultimately gives authority to the House and Senate to be the “judge of the elections, returns and qualifications of its own members.” And a federal statute, the Federal Contested Elections Act, governs how the challenge will proceed. The contest goes to the House Administration Committee, which will issue a report on who received the most votes. The full House will then make a final determination as to who was duly elected.
Given that partisan legislators will make the ultimate decision on the election contest, it is hard to separate partisan interests from the best interests of the democratic process. Indeed, Democrats enjoy a 6-3 margin on the House Administration Committee. Even if every member of that committee acts with perfect integrity, a determination that Hart has won the seat will be seen as a partisan power grab.
There is a long history of contested elections in the US House of Representatives. But that doesn’t make it right in every instance — especially in an era in which election losses now produce cries of fraud or unfairness (however unfounded many of them may be).
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Instead, we should reinforce a democratic norm that elections are final when certified or that losing candidates must use the more neutral procedures in state law to challenge the result. In addition, given that the Constitution vests ultimate authority in the House to judge the election of its own members, it should at least set up a truly bipartisan process for doing so. At a minimum, there should be an equal number of Democrats and Republicans on the committee that considers the dispute.
Former President Donald Trump infamously refused to accept defeat in 2020, producing dangerous results for the peaceful transfer of power. He wanted Vice President Pence and Republicans in Congress to object to states that he lost. That mindset — that it is acceptable for a losing candidate to appeal to a favorable partisan body to challenge the results — undermines the legitimacy of our democracy.
After an election has been certified, a losing candidate and their political party should focus their energy on the next fight. After all, the 2022 election cycle is already underway.
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