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Scott County supervisors violate the law in rejecting election recount report

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Scott County supervisors violate the law in rejecting election recount report

Dec 09, 2023 | 10:00 am ET
By Ed Tibbetts
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Scott County supervisors violate the law in rejecting election recount report
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Scott County Administrative Center (Photo by Ed Tibbetts)

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Scott County continues to have trouble with elections.

Last year, a controversy erupted over a state legislative race. This year, it’s a school board contest.

On Monday, a 3-2 majority of the Scott County Board of Supervisors voted to reject the report of a three-person recount board in a closely contested Pleasant Valley School Board race.

The supervisors claimed the recount board broke the law.

So, the majority responded by breaking the law themselves.

As a result, it now appears that, pending an appeal, Jameson Smith will be declared the winner over incumbent Tracey Rivera in District 6. Rivera was appointed to the seat last year.

On Election Day, the unofficial results said Smith got 256 votes, while Rivera, who was running as a write-in candidate, received 250 votes. After the county board canvassed those and the other results, Rivera asked for a recount, and the recount board found the two candidates tied at 255 votes apiece.

In case of a tie, state law calls for a drawing to determine the winner.

That hasn’t happened. Unfortunately, the county board of supervisors refused to fulfill its legal duty and accept the findings of the recount board.

In this, the Iowa Code, Section 50.48(5), is clear: If a recount board finds an error in the tally, the law says, “The county board shall reconvene within three days after being so notified, and shall correct its previous proceedings.”

The county attorney’s office told the supervisors the law was clear, that their role was ministerial, and the report should be accepted. But Supervisors John Maxwell, Ross Paustian and Jean Dickson voted to reject the recount board’s results, anyway. Board Chair Ken Beck and Supervisor Rita Rawson voted to accept.

It is my hope that a judge will be asked to compel the supervisors to follow the law, and that the contest provisions in this area — which also were explained to the board by the county attorney’s office — will take effect. The case appeared to be headed this direction, anyway.

The supervisors, even those who voted to approve the report, appear convinced the recount board acted improperly.

Dickson read from an email by a member of the recount board, a retired judge who was the neutral member of the panel and who was in the majority that agreed the race was a tie. (A third recount board member, representing Smith, objected to how the recount was done.) In the email, the retired judge said that in some cases, the ovals on the ballot next to Rivera’s name were not “filled in,” but her name was clearly written in. These votes, he said, were counted just as the votes were counted for Smith that rather than being filled in had an “X” marked in the oval adjacent to his name on the ballot.

After reading from the email, Dickson said there is no dispute the law wasn’t followed.

Other board members also appeared to reference the email.

A part of the state administrative code says write-in votes only count if the ovals next to the names of write-in candidates are “marked.” However, the retired judge’s email also said there appears to be conflicting language in the code and voter intent also is a consideration.

Indeed, the administrative code also says, “a ballot shall not be rejected solely because a voter failed to follow instructions for marking the ballot.”

I’m not in a position to judge the code as it pertains to how the recount board did its job. But I don’t believe the supervisors are, either. It seems to me that more information is needed here than just a few emails that weren’t explicit about how each of these ballots were handled; not to mention the question of whether there is a conflict in the code.

There is a process in state law that would conduct this kind of analysis, but the board of supervisors is not the proper venue for this. Again, the county attorney’s office explained this on Monday.

Unfortunately, the majority took it upon themselves to usurp that role. Two of the supervisors even urged that the case end with their illegal action; essentially, that Rivera drop it. But this would prevent the kind of fact-finding and legal analysis the case requires, and the public deserves.

It is instructive that the county attorney’s office did not explicitly allege itself that the recount board violated the state law, but it was clear in advising the supervisors what their legal duty was.

I am eager to find out more about how this recount was done. Recall, last year in the controversy over the race for the Iowa House District 81 seat between Luana Stoltenberg and Craig Cooper, there were concerns about how the recounts were conducted.

This is the second consecutive year in which a close race and a resulting recount left doubts about the outcome. (I should note that there are other controversial aspects of the Pleasant Valley process, including how the recount board’s report was handled by county officials, that I don’t deal with here.)

I believe the highest priorities here should be to ensure the law is followed and that all the legal votes are counted; that all the voters and candidates are treated in an equitable manner.

A majority on the Scott County Board of Supervisors failed Monday to do its part in this carefully constructed system. Hopefully, a court will remedy this failing.

This column was originally published by Ed Tibbetts’ Along the Mississippi newsletter on Substack. It is republished here through the Iowa Writers’ Collaborative.

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