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Recounts, lawsuits could leave 2 House seats vacant next year

Both parties are preparing to spend much of December mired in court fights and recounts in two of the closest congressional races of all time — with Democrats facing the prospect their House majority could shrink even further.

A month after Election Day, razor-thin congressional elections in an open southeast Iowa seat and the upstate New York seat held by Democratic Rep. Anthony Brindisi are still unresolved with Democrats barely trailing in both districts. It’s even possible both elections won't be decided — and the seats left vacant — by the time the 117th Congress meets in January.

The implications are unusually serious in a tightly divided House: Losing those districts will leave Speaker Nancy Pelosi with even less room for error as she attempts to muscle through legislation under a new Democratic president, after already seeing 12 Democratic incumbents ousted in the 2020 election. These races could mean the difference between a 5-seat and a 7-seat majority.

The latest blow for Democrats came Monday, when Iowa officials certified Republican Mariannette Miller-Meeks as the winner of her race after a recount found her leading Democrat Rita Hart by just six votes out of 394,000 cast — or 0.002 percentage points.

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“When we began this recount, Rita Hart was down by 47 votes,” Hart campaign manager Zach Meunier said in a statement Monday. “As more Iowans’ voices were heard, the margin has narrowed dramatically and is now down to a mere 6 votes — making this the closest congressional race in recent history, and one of the very closest in the last hundred years.”

Republican state Sen. Mariannette Miller-Meeks speaks to reporters during an election night watch party, early Wednesday, Nov. 4, 2020, in Riverside, Iowa. Miller-Meeks is running for the seat in the state's 2nd Congressional District. (Joseph Cress/Iowa City Press-Citizen via AP)
Republican state Sen. Mariannette Miller-Meeks speaks to reporters during an election night watch party, early Wednesday, Nov. 4, 2020, in Riverside, Iowa. Miller-Meeks is running for the seat in the state's 2nd Congressional District. (Joseph Cress/Iowa City Press-Citizen via AP)

Hart has signaled that she intends to launch a legal challenge, a move that will further prolong the race and could perhaps place the House in the awkward position of having to decide which woman to seat. Miller-Meeks, an ophthalmologist and state senator, is making her fourth run for the district after three failed tries.

A recount has yet to begin in New York, where the disorganized, decentralized elections system has muddled the outcome of the close rematch between Brindisi and former GOP Rep. Claudia Tenney, currently separated by roughly a dozen votes. But upwards of a thousand ballots remain in dispute or uncounted, including large numbers of provisional ballots, according to tallies from both campaigns.

After trailing on election night, a wave of absentee ballots has helped Brindisi close the gap — though the varying reporting processes by the counties in the district have made the process less than transparent. A New York state judge is reviewing updated county vote totals on Monday afternoon before setting next steps, which could include a recanvass. Both Tenney and Brindisi released statements projecting optimism.

“Our campaign is committed to seeing that all — and only — legal votes count,” said Sean Kennedy, a Tenney spokesperson. “The voters’ will must be respected and the integrity of the election process maintained. We are confident Claudia will emerge the winner when all is said and done.”

Brindisi and Hart have both retained counsel from Perkins Coie, the premier Democratic election law firm — a sign they are gearing up for a lengthy legal process. The head of Perkins Coie's election law practice, Marc Elias, is a recount expert who successfully led Democrat Al Franken's efforts in Minnesota's 2008 Senate race. Franken trailed about around 200 votes after the initial count but overtook then-Sen. Norm Coleman (R-Minn.) in a recount.

Hart’s campaign is already indicating she will contest the result, noting in a statement that the “recount process was designed to count ballots that had already been tallied, meaning that additional legal ballots may have yet to be counted.” Hart has two days to contest under state law now that Iowa's Board of Canvass certified Miller-Meeks' win.

Her challenge would be referred to a judicial panel, which will include the Iowa state Supreme Chief Justice, to determine the victor of the contest. Under Iowa's election law, that panel must rule on the matter by Dec. 8, creating the opportunity for a speedy resolution. But Hart could also file an appeal directly with the House, a step likely taken as a last resort.

The House could refuse to seat Miller-Meeks and create a committee to review the matter. If Hart files a contest under the Federal Contested Election Act, then the House Administration Committee will claim jurisdiction.

If the result holds, Republicans will control three of Iowa’s four congressional districts after holding only one after the 2018 midterms. This seat, in particular, was a white whale for Republicans who had been unable to reclaim it since Dave Loebsack, then a little-known political science professor, won it in a 2006 upset.

Loebsack decided to retire after this cycle, creating a top battleground that President Donald Trump won in 2016 after President Barack Obama carried it twice. Democrats moved quickly to consolidate behind Hart, a farmer and a state senator who was the party’s 2018 lieutenant governor nominee. Miller-Meeks, whom Loebsack defeated in 2008, 2010 and 2014, beat former Rep. Bobby Schilling (R-Ill.) in the GOP primary.

Iowa's contested election is much closer to a resolution than New York's, where a judge has yet to mandate a recanvass. State Supreme Court Justice Scott DelConte is expected to rule on disputed absentee and provisional ballots in the coming days that could swing the final tally in either candidate's favor.

“The integrity of the election and maintaining a count that ensures the voters of this district are heard is of the utmost importance,” Luke Jackson, a spokesperson for Brindisi’s campaign, said in a statement. "We are hopeful that once the counting process is completed, Anthony will be declared the winner."

The photo finishes in Iowa and New York mirror the contentious partisan battle after the 1984 election, when the Democratic-controlled House refused to seat the Republican challenger of incumbent Rep. Frank McCloskey (D-Ind.). Indiana’s secretary of state certified Republican Richard McIntyre as the winner after a partial recount, but after an objection under the Federal Contested Elections Act, McIntyre was not seated in the House.

A recount conducted by Congress’s General Accounting Office found McCloskey the winner by four votes, and the House voted — largely along party lines — to seat him, triggering a bitter protest from Republicans, who were deep in the minority.

Sarah Ferris contributed to this report.