Under the Constitution, each house is the final judge over any dispute related to the election and seating of members.  Fortunately, this power is only rarely invoked.  But we may be facing one (or more) of those rare instances this year.

As this post is going live, we are in the midst of a recount for Iowa’s second congressional district.  Each county is individually certifying their recount.  Most of the counties have certified the new numbers, but a handful have not yet made their numbers official.  Based on the official numbers from the counties that have certified the recount result and the original count from the remaining counties, the margin is 35 votes.  But unofficial reports from the remaining counties show a swing of 36 votes which would mean that the Democrat would win by 1 vote.  Of interest in Iowa is the law governing recounts.  The law allows each county to choose between a hand recount or a machine recount or, maybe, a hybrid recount (in which ballots which are kicked out as overvotes or undervotes are examined to see if there is a valid vote).    These differences between the counties means that the final result from Iowa will differ from what a full hand recount would have shown or what a full machine recount would have shown.  And that invites further review.

Likewise, it seems like the race in New York’s twenty-second district is also close.  Because New York counties are not required to report interim counts, we will not know the final counts officially until all of the counties certify their results.  Some of the counties have officially released their current counts, but, in other counties, reporters are relying on sources to report the state of the count.  It appears that the race in New York is as close or almost as close as the race in Iowa.  Currently, final results are up in the air as the courts have been asked to review provisional ballots to determine which ones should be counted (and, apparently, one county used post-it notes to distinguish between the already counted ballots and the rejected ballots and those post-it notes fell off in transport).

The big thing for both races is that the final certification from the state election authorities and any court rulings are not binding on Congress.  Instead, the losing candidate may file an election contest with the house of Representatives.  The basic rules for the contest are set forth in Chapter 12 of Title 2 of the U.S. Code, but the Congressional Research Service has published a manual more fully explaining the procedures.   The simple version of the procedures is that any election contest in the House of Representatives will be referred to the Committee on House Administration to review and make recommendations to the full House.  Among the options available to the Committee is the power to conduct its own recount under the rules that it believes are appropriate (i.e. a hand recount of all of the counties) and to make its own decisions about disputed ballots.  At the end of any review, the Committee can recommend that the full House seat the candidate that the Committee believes won or the Committee can decide that it is impossible to determine a winner and recommend that the House declare the seat vacant with a new election to be held.  In the last two contested elections, the House decided that the candidate certified by the state actually lost by four votes, and the Senate decided to declare a vacancy and hold a new election.

The Democratic majority would probably prefer if New York and Iowa certified the Democratic candidate as the winner — both from the simple desire to have a larger majority and from the desire to avoid being put between a rock and a hard place on any election contest.  The last election contest involved the Republican candidate being certified and the Democratic majority deciding that the Democrat actually won.  Regardless of the accuracy of such a determination, it is easy to portray such a decision as mere power politics.

Of course, the ultimate lesson from both races is that sometimes every vote does count.  There are twenty-four counties in Iowa’s second district.  If the current news reports about the recount are accurate, the margin will be less than one vote per county.  Even in the New York race, the margin looks like it will be less than one vote per precinct.