Democrat Rita Hart, a 2020 candidate for Congress in Iowa’s 2nd Congressional District, deserves both sympathy and criticism. Sympathy because Hart lost in November by just six heartbreaking votes to Republican Mariannette Miller-Meeks out of nearly 400,000 votes cast. Criticism because, in contesting that outcome, Hart tried to end-run the courts. Fortunately, she just withdrew her challenge, but she left us a case study in how not to contest elections.
Some people on the wrong end of such a narrow margin might have started walking the Pacific Crest Trail end to end, like Cheryl Strayed in “Wild.” Instead, Hart petitioned the House of Representatives, pursuant to the Federal Contested Elections Act of 1969, to seat her in Congress instead of Miller-Meeks. Under Article I, section 5, each chamber “shall be the Judge of the Elections, Returns and Qualifications of its own Members.” The Federal Contested Elections Act provides procedures for election challenges in either chamber, which Hart invoked without first presenting her challenge to the courts. It’s been more than 30 years since the House reversed an election.
The Hart petition concerned only one congressional race, but it became a Rorschach test for partisan hypocrisy over the 2020 presidential election, which the Republicans handily passed. With the backing of congressional Republicans, Rep. Miller-Meeks (she was provisionally seated) argued that Hart’s petition should be dismissed because Hart refused to let the courts decide her challenge and the House should defer to the voters and the state election board’s certification.
The hypocrisy is that a majority of Republican congressmen and six Republican senators refused to defer to voters, state certifications and the courts when they objected on Jan. 6 to the Electoral College certification of Joe Biden’s victory. Indeed, 83 Republican congressmen and senators, who had objected to certifying Biden’s win, claimed in a letter that “political expediency” by the Democrats was behind Hart’s challenge, as though that calculation was not behind their own objections to Biden’s victory. Without an apparent shred of irony over what happened on Jan. 6, Representative Debbie Lesko (R-Ariz.) tweeted that “Americans should be appalled by the lengths Pelosi and the Democrats are willing to go to keep themselves in power.”
For their part, Democrats flirted with hypocrisy before pulling back from the brink. House Speaker Nancy Pelosi (D-Calif.), mindful that with a slim margin in the House Democrats cannot give up a single seat, suggested at one point that seating Hart was a plausible “scenario.” But Hart and her lawyers blundered badly because, despite having meritorious claims that 22 ballots were not properly counted (remember, this is Iowa, where the 2020 Democratic presidential primary was badly botched), they deliberately avoided review by the courts and went to a forum controlled by Hart’s own party.
That didn’t play well. Hart withdrew her petition to the House, blaming a “toxic campaign of political disinformation” against her, but it’s reasonable to suspect that she was pressured by Democrats, who had begun to split over the optics of using their political muscle to seat someone in their own party in such a close race, especially when court review had been evaded.
Granting Hart’s petition would have damaged the ability of Democrats and others to rebut the lie that the 2020 election was stolen from Donald Trump. One of the best responses to that lie is that more than eighty judges, nearly half Republican appointees, rejected virtually every Republican claim that more votes were cast for Trump than Biden. Seating Hart, who refused to even appear before a judge, would have clouded that response.
Courts should decide election challenges in the first instance because they are neutral forums with the expertise to weigh and decide between conflicting claims based on legal standards and not based on political power. There is a role for the Federal Contested Elections Act, but only in cases where candidates have exhausted their court options and where a compelling case can be made on behalf of the loser, and not simply that it was a tight race.
Otherwise, elections will be decided by the law of the political jungle, where might makes right, which is a good way to destabilize a democracy.
Gregory J. Wallance is a writer in New York City and a federal prosecutor during the Carter and Reagan administrations, where he was a member of the ABSCAM prosecution team that convicted a U.S. senator and six congressmen of bribery. He is the author of “America’s Soul in the Balance: The Holocaust, FDR’s State Department, and The Moral Disgrace of an American Aristocracy.” Follow him on Twitter @gregorywallance.