Wednesday, March 31, 2021

Last Thoughts On The Second District

I was subpoenaed late last week and was preparing to give a deposition this week on the Rita Hart challenge to Mariannette Miller-Meeks and the 2nd CD election results. I have expected that for about four months now, and that's why I've been mostly silent on the 2nd District race.

That ended abruptly about 3 PM today as Hart dropped the challenge and conceded. I am feeling all sorts of things - professional, political, and personal - right now, but my immediate feeling is personal relief. I've been biting my tongue bloody not commenting on this except to family and co-workers, and now I can finally speak my mind. It's not going to make everyone happy - but in my mind there's no real winners.

The Rhetorical Trap

After the recount that left her six votes short was canvassed on November 30, Hart had an extremely short timeline, just over a week to request and complete a state level challenge to the election. Team Hart decided, and they weren't wrong, that a week was insufficient time. The challenge process is designed for small city councils or maybe a legislative district, not for a quarter of the state.

Instead, Hart decided to bypass the state process and appeal the election directly to the House of Representatives, which under the Constitution - not even an amendment, but the original Founder's text - is the final judge of its own elections.

We may never know the legal reasoning behind that decision. But politically, it was a trap, and Iowa and DC Republicans were unanimous in their rhetoric: Hart and Nancy Pelosi are trying to use a partisan process to overturn an election that a bipartisan Iowa canvass board certified. 

Almost verbatim. Over and over again. It was really an impressive feat of messaging. But don't give the Republicans too much credit because...

The Republicans disingenuously refused to answer the underlying questions.

As I write, the Republicans are touchdown dancing just a little too vigorously, considering they only "won"* by six freakin' votes.

Packer fans, of which as you know I am one, are still not over the September 2012 Monday Night Football game against Seattle. There was a referee strike underway, and the game was being officiated by replacement refs ("scabs" for my union friends).

In a Hail Mary situation with time expired, one referee signaled Seattle touchdown, one signaled Packer interception. The call went to the Seahawks and the Packers lost. The next day league officials admitted the touchdown call was wrong, but refused to reverse the outcome of the game. It has gone down in Packer lore as the "Fail Mary." (The referee strike was immediately settled.)

Is it right that a team should lose a game because an inexperienced official made a mistake? The NFL never really answered that.

Is it right that a voter should lose their vote, and that a candidate should lose a seat in Congress, because a precinct official or a temp worker made a mistake? The Iowa Republicans have never really answered that either. They've fallen back on "the call on the field stands." They "won"* this election on a bad call - a Fail Mariannette.

As near as I could tell, there was never serious media push on this. Every story I saw was Both Sides. Trump challenged the election, Hart challenged the election. Same thing. "These are two totally different things" may have been too complicated for the masses, but the press should have understood. No one ever pushed: 

"This person was incorrectly told by a part time temp worker to re-open the envelope they got that had arrived already sealed, tape it back shut, and sign over it. Is it fair that their vote didn't count?"

"Hart and Nancy Pelosi are trying to use a partisan process to overturn an election that a bipartisan Iowa canvass board certified."

The auditors were thrown under the bus.

Are you perfect at your job?

Do you know anyone who is perfect at their job?

I'm not perfect at my job. But after 23 years I am very good at it. So are my boss and my co-workers. We are damn proud of it.

We had the best crew of temp workers we've ever had. They worked endless hours and risked their health in a pandemic to help people vote, through the mail and from their cars as we cranked 18,000 people through a parking ramp in four weeks. We also had, and these are the people I most worked with, our best ever mail room team that checked in mailed ballots, found the mistakes, and contacted the voters as fast as they could. We had remarkably few unfixed problems that we had to reject.

We also had a great team of Election Day poll workers - there were a lot of new faces because many of our elderly workers were literally afraid for their lives during COVID.

We had a great absentee board - we've had years like 2004 where there were mass challenges and rejections, but this team worked hard to count every vote. We also had wonderful party vote protection observers from outside the office on both sides - my Republican friends were not focused on challenging ballots but on helping their problem voters get their problems fixed.

I don't want to play nit-picky games over trivial bureaucratic issues. I do what I do for a career because I deeply believe in helping people vote. But even the greatest doctor can't save every life, and even the best election team can't save every vote - and it's heartbreaking when we can't.

But for three solid weeks in December and January, after Pelosi had made the decision to "provisionally" seat Miller-Meeks, the Hart Campaign and the Iowa Democratic Party sent out daily press releases featuring the problem voters, and almost always including some tone implying election workers are incompetent and some variation of "22 ballots were illegally not counted."

Maybe I'm too defensive, but I took offense at that. 

We weren't perfect, but in my objective professional judgement we did the best we ever have. And as I'll explain, it's entirely possible for a ballot to be legally cast, and yet at the same time legally not counted. 

What I was preparing to testify about

My job the morning after the election is organizing paperwork from the precincts. I have to track down, open, and sort 57 yellow bags, our technical term for which is "yellow bags," of paperwork, one from each precinct. Some of them are neatly organized, others are a mess. I organize piles of election day registrations, address changes, and other minor items, but the most important things are the provisional ballots. I need to post a list of how many, and I need to start researching the circumstances to see if we can count any.

We have changed our polling place printing procedures from labels to full sheets, and one of the newer instructions to poll workers is to attach the voter's provisional ballot paperwork to the envelope containing their ballot. We have tape and glue sticks and paper clips.

So I opened a yellow bag and started organizing, and I found in no particular order a pair of voted provisional ballots and two sets of paperwork not attached. By the time I knew there was a problem, there was no way to know if things had been in a particular order, and no way to identify which ballot belonged to which voter.

I was not happy. This was a serious mistake. It could only be repaired if both voters brought in their ID materials to cure the problem. It's actually kind of uncommon for provisional voters to come in and fix things - they usually feel like they "voted" and "the election" (by which I mean "for president" which is how most voters see it) wasn't close.

And the worst thing possible happened. One voter brought her materials in. The other voter had made an unfixable mistake and voted at the wrong precinct - Iowa code specifically says provisionals at the wrong precinct can't count. So one ballot was good and one was not, but we had no way to know which was which.

Permanent staff does not make these final decisions. But the absentee board looks to us for guidance. I presented all the provisional ballots to the team, which I always do grouped by nature of problem so that decisions can be consistent. At the end I had to tell the team this story, both ballots in hand, and recommend that they be rejected, which the team did.

So that's basically my testimony. I wrote this instead so my prep work wasn't all wasted.

It wasn't fair, but as a lawyer once told me fair and the law aren't always the same thing. And we feel bad enough about it without being told we broke the law. That was not "illegally not counting the votes." It would have been illegal for me to do otherwise. 

Rita Hart had no choice but to take one for the team.

Hart had the worst possible luck. It wasn't just that she had the closest congressional race in at least 40 years, and that it turned on minor clerical errors.

It was that this happened at the same time as a defeated president lied about massive voter fraud, refused to concede, and gave aid and comfort to criminals who invaded our Capitol and murdered police officers.

If it weren't for that, the 2nd District challenge would still have been bitter and partisan and controversial. But it would have been possible. Instead, we had an environment where immeasurable imaginary fraud and 22 very specific examples of minor mistakes were treated as Both Sides Identical.

Nancy Pelosi had bigger problems in late December than one seat in Iowa. She had to defend the legitimacy of democracy itself, when it was still not entirely clear what was going to happen with Trump's intransigence (and before it was even possible to imagine how bad it actually turned out). 

And Nancy Pelosi also counts votes better than anyone. The last time there was a challenge like this, Tip O'Neill lost ten Democratic votes on the final floor vote - and Pelosi didn't have ten to spare, and she hates to lose in public.

I'm sure there was a long heart to Hart talk before Pelosi announced the decision to provisionally seat Miller-Meeks. But Hart wasn't having it and continued on. The fight was escalating as the committee prepared to launch into the challenge and as people like me were getting called on for testimony. We were getting closer to crisis time, and as we all know there are some rather unstable and weapon-obsessed House members. It was scary enough on TV in January - Madame Speaker was there and being literally hunted.

This is only speculation, but my best guess as to why Hart suddenly dropped her challenge today is that the Speaker reached out for help to someone higher up - and you know who I mean by that - to once again ask Rita Hart to take one for the team. It was an unpleasant situation where what was right wasn't politically possible, and that is entirely the fault of Donald Trump and his lies about a stolen election.

Rita Hart's loss is NOT Johnson County's fault.

In the one comment I have already made about this race, I took issue with the speading conventional "wisdom" that Hart lost because of under-voting in Johnson County. Instead I demonstrated that our undervote in the congressional race was on a par with past elections, which smart campaign number crunchers would understand. Her "underperformance" of Biden was more likely Biden's OVER-performance with Never Trump Republicans who are more numerous here than in more rural areas.

Instead of blaming the county where Hart performed nearly 15 points better than anywhere else, Iowa Democrats would spend better time trying to find more votes in the counties where Miller-Meeks won three to one.

What Next?

The future of Iowa's congressional delegation is more up in the air than in most states. Barring massive changes to our redistricting system (which might have happened if not for the late census and compressed timeline), Iowa legislators have less control over district lines than in most states, and are generally more worried about their own seats than about the congressional lines.

Rita Hart lives in a mid-sized county on the edge of a district that has grown and needs to shed population. If she should run again, she could very easily find herself running not against Miller-Meeks, but on almost entirely new turf against Ashley Hinson - and Abby Finkenauer is acting very much like someone who wants to make a comeback.

The other question is whether the election challenge, and media acceptance of the Republican "Iowa certified this election" rhetoric, has done long term damage to Hart.

No Real Winners

Maybe on paper you can call Miller-Meeks a "winner" here. But her party's refusal to address the underlying questions of voter disenfranchisement, on the spurious grounds that "the call on the field should stand," is a bad look. Also a bad look: the media buying the GOP rhetoric and refusing to press for answers on the disenfranchisement issues.

When you only win by six votes, you go into the next cycle with a big target on your back. Also, calling your political action committee "Six PAC" is a bad look when you won the game on a bad call.

Iowa Democrats, meanwhile, have lost a seat that the underrated and underappreciated Dave Loebsack had for 14 years, and have gotten perhaps unfairly a Sore Loser label. Also unfairly, this fight undercut the very important message that Joe Biden's election was legitimate. Rita Hart took one for the team, but it may have been too little too late.