Recount broke law in disputed Scott County school board tie, Iowa secretary of state says

A recount that resulted in a tied election in an eastern Iowa school board race was marred by the inclusion of a number of invalid votes, the Iowa Secretary of State's Office has found.

Jameson Smith challenged incumbent Tracey Rivera for a seat on the Pleasant Valley School Board, and the initial count after the Nov. 7 election showed him with a six-vote lead. Rivera requested a recount, which reported later that month that the race was actually tied, 255 to 255, meaning the winner would be decided by a coin flip.

But the Scott County Board of Supervisors in December refused to certify the recount, citing allegations of irregularities raised by one member of the recount panel. Rivera responded with a lawsuit Dec. 22 seeking to compel the board to accept the recount result.

In a letter dated Jan. 5, Secretary of State Paul Pate's office says the recount board in fact did err by counting some votes that, by law, should have been invalid. Pate is issuing a "technical infraction" to the recount board, with his chief counsel Eric Gookin writing that "all relevant materials" clearly instructed the members on which votes were or were not to be counted.

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Because none of the panel members are county supervisors, no fine will be imposed for the violation, a spokesperson for Pate confirmed.

What was wrong with the disputed votes?

Under Iowa law, when using an optical scan voting machine, voters must fill in the oval, known as a "target," on the ballot for their candidates of choice, even if there is a write-in, to cast a valid vote.

Rivera ran as a write-in candidate due to a problem with her nomination petition. In the resulting recount, the panel allegedly counted several ballots on which voters had written Rivera's name but failed to mark the target oval to indicate a write-in vote was being cast. Recount panel member Cyndi Diercks objected to at least one of these ballots but was overruled by the other two members.

Diercks, who was chosen for the panel by Smith's campaign, told the Register she became aware of the problem toward the end of the recount and objected at that time. Another panel member, retired Judge Mark Smith, in an email to the Scott County auditor accused Diercks of strategically waiting until the final write-in ballot, which would have made it a tie, to raise her objection, and said that he and fellow panel member Arun Pillutla "felt it was unfair to count the other ballots in the same situation and not this one."

Pillutla, who was appointed by Rivera's campaign, and Smith did not respond to emails asking for their response to the technical infraction report or the contested recount process.

Confusion, accusations over filing recount report

In her lawsuit against the county, Rivera accused Diercks of taking the recount report signed by all panel members back from the auditor and later filing it after making unauthorized changes without the signatures of the other two panelists.

Diercks, in an interview, said that's not what happened. After disagreeing over the improperly marked ballot, she said, she asked the Scott County attorney to come provide guidance, only for Pillutla and Smith to leave before the attorney arrived. The document the other two added their signatures to had been her scratch tally-sheet, she said, which she took home because she believed the panel still needed to meet to resolve the disputed ballots and prepare a clean copy of its final report.

"The three of us should have gotten together, cleaned up the notes, transferred it onto another (sheet) for all three of us to look at and sign it. That’s not what happened," said Diercks, who added that she's been an election volunteer for two decades in Scott County.

"I didn’t figure (my scratch sheet) was the report," she added. "Like I said, there’s a lot missing from the report, like everything. Those are notes."

In court filings, Alan Ostergren, a prominent Iowa Republican election lawyer representing Smith's campaign, said the supposedly final report is indeed missing some of the information required by law and that the Scott County Board was justified in rejecting the recount based on “obvious clerical errors in the tally lists.”

Smith remains election winner, for now

Ashley Hunt, communications director for Pate's office, said Smith remains the certified election winner based on the original vote canvass. Asked if Pate takes a position on whether the county board should have certified the recount, Hunt said Pate's office has not issued an infraction to the board and "will let the legal process take its course."

If that were to happen, though, it would likely tee up another election lawsuit from Smith. In a November letter to Scott County Auditor Kerri Tompkins, Ostergren warned that any outcome declaring Rivera the winner "will surely be overturned in an election contest proceeding."

The disputed 2023 election comes after a previous election controversy in Scott County in 2022. Republican Luana Stoltenberg won election to a state House district that year after two recounts showed her with an 11-vote edge, a process that found sizable disparities between machine and hand counts of the ballots.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.

This article originally appeared on Des Moines Register: Iowa school board election recount cited for including invalid votes