House Democrats are undeterred by the mounting GOP criticism over their review of a contested congressional race that could potentially overturn a state-certified Republican victory in southeast Iowa, brushing back attacks that they are seeking to subvert the will of voters just months after lambasting former President Donald Trump for trying to reverse his electoral defeat.
While Democrats say what’s happening in Iowa’s 2nd Congressional District is nothing like Trump’s lies about widespread fraud and a stolen election that ultimately led to the January 6 attack on the US Capitol, they are aware of the optics of potentially booting out a member of Congress from the opposing party who was declared the winner by bipartisan state election officials.
Maryland Democratic Rep. Jamie Raskin, who led the House’s impeachment case against Trump after the insurrection, said the bar for overturning the House election has the same high standard invoked in the presidential race. He said the challenger, Iowa Democrat Rita Hart, has the “statutory burden of proof to sustain.”
“The critical thing is when you go to a judicial forum, bring some proof, bring some evidence with you,” Raskin told CNN.
In November, Iowa’s election officials certified Republican Mariannette Miller-Meeks’ defeat of Hart – 196,964 to 196,958 – the closest federal race in 2020.
But Hart’s campaign has argued that if 22 other legally cast ballots are counted, she would win the race by nine votes rather than lose it by six. (The campaign has released a couple of voter testimonies claiming that their ballots were improperly tossed because of issues with the envelopes.) And since the Constitution makes the House the ultimate “judge” of its own elections, Hart has made an unusual petition to investigate her claims and seat her instead.
Republicans are outraged that she’s taken her case to a friendly audience in the Democratic-led House, rather than to the courts, and say it’s a brazen attempt by House Speaker Nancy Pelosi to pad her razor-thin majority with an extra seat.
“They were complaining because Republicans wouldn’t tell people that Biden won the election on November 4, the day after the election, and now they’re playing this game? It just doesn’t add up,” said Chuck Grassley, the state’s long-serving GOP senator.
But Democrats say there’s nothing untoward about Hart using a process laid out by federal law giving her a chance to make her case before Congress.
“We can’t be concerned about optics,” said North Carolina Rep. G.K. Butterfield, who sits on the House panel considering the challenge. “We’ve got to review the evidence and see where it leads us.”
Raskin, a member of the committee, downplayed how the public might view the matter if the House overturned the election. “We live in cynical, jaded time, but that doesn’t mean we all have to give into it,” he said. “We just have to do our jobs.”
The lawyers for the two sides have until Monday to send their initial briefs to a House panel, which voted on party lines last week to consider the case. The House, which Democrats control by a 219-211 margin, could ultimately decide the election. The chairwoman of the House Administration Committee, Rep. Zoe Lofgren of California, said in an interview she hopes the case is resolved this spring.
Democrats could then face a controversial vote just months after defending the state officials who certified the 2020 presidential election. Some Democrats may be uneasy at the prospect.
California Rep. Lou Correa, a Blue Dog Democrat who sits on the Judiciary Committee, said he wanted to “look at the facts” about “what motivates Congress to look at something that should be a state issue.”
“I want to see what compelling reasons there are for the feds to get involved in this,” he said. “I think these are issues that right now are probably best left at the state level.”
The vote could be particularly tricky for Democrats like Reps. Jared Golden of Maine and Cindy Axne of Iowa, who could face difficult reelection races in 2022.
Golden, who narrowly defeated a Republican incumbent in 2018 who challenged his loss in court, told CNN that he did not have a problem with the House Administration Committee’s actions so far.
“My instinct is that on these types of things, it’s always best to count every vote, look under every stone,” Golden said. “I think it’s best for either the incumbent or the challenger to allow the process to go as far as there are legal options to do so.”
But Republicans are eager to use any Democratic vote to unseat a lawmaker as a liability in the 2022 midterms.
Iowa GOP Sen. Joni Ernst said in an interview that Hart’s challenge puts the only remaining Iowa Democrat in Congress – Axne – in “jeopardy.”
Ernst asked, “Where is Cindy Axne saying, ‘This is an outrage and the Iowa voters have spoken?’ ”
Axne’s spokesperson pointed CNN to a statement the congresswoman released in December. Axne said at the time that Hart has the “Constitutional and legal grounds to pursue” her case. “I support a transparent process that ensures every properly-cast vote in this contest is counted,” she added.
A rare House review of an electoral victory
It’s extremely rare for a congressional candidate to successfully challenge their loss in Congress. From 1933 to 2009, the House considered 107 contested election cases, according to the Congressional Research Service. In only three cases did it seat the candidate who contested the results; in one instance, it declared a vacancy.
But Miller-Meeks’ attorney Alan Ostergren told CNN “it is a worry” that the Democratic-controlled House will reprise its 1985 decision to seat the Democrat over the state-certified Republican. He said that Hart could’ve gone to court instead of Congress.
“Our focus is on the fact that we have a certificate of election, and that there was a process that Hart could have chosen that was based on law, administered by judges, that she bypassed in favor of one administered by her own political party,” said Ostergren.
“The argument on their 22 ballots is almost exclusively that state law should not matter,” he added. “That’s a pretty troubling argument to make.”
Democrats have argued there wasn’t enough time after the state certification of the race for Hart to wage her case in court in order to comply with a December deadline. Marc Elias, a lawyer for Hart who helped lead the Democratic efforts against Trump-inspired lawsuits to overturn Biden’s win, did not respond to requests for comment.
“Voters who cast their ballots legally in this election deserve to have their voices heard and we are going to continue working to make sure that is the case,” said Hart spokesman Riley Kilburg. “This is a historically close race and we appreciate that the committee is taking seriously the need to ensure every vote is counted in this race by following this legal process.”
Republicans say that Democrats are trying to steal the seat. Senate Minority Leader Mitch McConnell said on Thursday that they were “trying to use brute political power to kick” out Miller-Meeks.
“Rita Hart and Speaker Pelosi are trying to subvert Democracy,” said National Republican Congressional Committee spokesman Mike Berg. “Every Democrat member should condemn this partisan power-grab.”
Lofgren said they are simply “following the law and the Constitution.”
When asked if she was worried about the optics of a partisan body determining the election, Lofgren said that the last time she evaluated an election, she made the motion that favored the Republican. (In 2008, Lofgren served on the panel’s task force that unanimously voted to dismiss a Florida Democrat’s case over her 2006 loss.)
“You have to just do it on the facts,” she said.
Other Democrats on the panel said that the GOP attacks shouldn’t deter them from reviewing the case.
“I don’t ever question Republicans’ ability to conflate what’s actually happening with the facts,” said California Rep. Pete Aguilar.
Democrats said that the cases of Trump and Hart could not be more different.
“I think you’re comparing apples to oranges,” said Iowa Democratic strategist Jeff Link. “Trump was trying to find ballots that didn’t exist. In this case, there are 22 ballots that were legitimately cast that hadn’t been counted. So, it’s a different situation.”
Pelosi reiterated as much to ABC this weekend.
“For them to call anybody hypocritical about elections when two-thirds of them in the House voted against accepting the presidency of Joe Biden is – well, it’s just who they are,” Pelosi said.
But Republicans say the House panel, which is divided between six Democrats and three GOP members, should keep the ultimate decision in the hands of Iowans.
“If six votes are not good enough for Marianette Miller-Meeks to be declared the winner, have a certificate and go through multiple recounts in a bipartisan way in Iowa, how is six partisan votes on the smallest committee in Congress reason enough to overturn the will of Iowa’s voters?” said Illinois Rep. Rodney Davis, the ranking Republican on the committee.
This story has been updated with additional developments Thursday.
CNN’s Sarah Fortinsky and Annie Grayer contributed to this report.