DES MOINES, Iowa (AP) — A Democratic candidate in a northeast Iowa House district, trailing by just nine votes, filed a lawsuit Thursday seeking to force election officials to count 33 ballots left uncounted because they lack a postmark.
Kayla Koether is seeking a temporary injunction in Polk County District Court to stop Iowa Secretary of State Paul Pate from certifying the House District 55 election results on Monday.
Incumbent Republican Michael Bergan leads with 6,924 votes to Koether's 6,915.
Koether also is asking the court to require Pate and Winneshiek County Auditor Ben Steines to confirm with the U.S. Postal Service that its barcode information on the ballots can prove they were mailed by the state mandated deadline.
State law says ballots received by mail must be clearly postmarked "or bear an intelligent mail barcode traceable to a date of entry into the federal mail system" not later than the day before the election and received by the commissioner not later than noon on the Monday following the election.
The ballots in question bear the bar codes on the outside envelope but like many ballots mailed in Iowa do not have a postmark stamped by the agency.
"Every legal vote should be counted," Koether said in a statement provided by Iowa House Democrats. "We believe that these 33 ballots were mailed on time in accordance with the law, and every effort must be made to count these additional votes. Our citizens voted in good faith, and their ballots should be counted in good faith."
It's common in many counties not to count absentee mailed ballots received after election day if they lack a postmark and post offices frequently do not postmark absentee ballot envelopes, Steines said.
"This is a frequent issue and it has been for years. County auditors have reported to the legislature that we can't rely on postmarks because the post office doesn't regularly postmark everything," he said.
Steines said the intelligent mail barcode referred to in the Iowa law is a code that a county election official would place on the ballot envelope before it's sent to the voter. It is not the one the postal service stamps on an envelope, he said. Only a few Iowa counties use their own barcodes because of the administrative burden and cost, he said.
Koether's lawsuit said Iowa law does not define intelligent mail barcode.
She asks a judge to order Steines and Pate to use the postal barcodes on the ballots to determine when they were mailed and if they meet the legal deadline, to count the ballots.
She asks for an immediate hearing and one was set for 1:30 p.m. Friday.
District 55 includes Clayton, Fayette, Winneshiek counties in northwest Iowa.
Koether said Fayette County officials counted at least 12 ballots that did not contain stamp canceling postmarks and were not check mail dates.
"The 33 voters in Winneshiek County have the same right to have their vote counted," she said.
Pate's spokesman said his office had no immediate comment.