IN THE DISTRICT COURT OF IOWA IN AND FOR POLK COUNTY
KAYLA KOETHER, in her individual
capacity as the Democratic Nominee for the
Iowa House of Representatives District 55,

CASE NO. _______________

Plaintiff,
vs.

PETITION FOR TEMPORARY
INJUNCTION AND WRIT OF
MANDAMUS

PAUL PATE in his official capacity as Iowa
Secretary of State; BENJAMIN STEINES in
his official capacity as County Auditor for
Winneshiek County, Iowa,
Defendants.

COMES NOW, Plaintiff and for her Petition states upon information and belief:
PARTIES AND JURISDICTION
1.

Plaintiff Kayla Koether is the Democratic Party’s nominee for the Iowa House of

Representatives District 55, including Winneshiek, Clayton and Fayette Counties.
2.

Defendant Paul Pate is the Secretary of State for the State of Iowa, serves as the

State Commissioner of Elections, and supervises Iowa’s county auditors in the administration of
Iowa’s election laws and administrative rules pursuant to Iowa Code § 47.1.
3.

Benjamin Steines is County Auditor for Winneshiek County, Iowa, and serves as

the Winneshiek County Commissioner of Elections, and is responsible for administration of
Iowa’s election laws and administrative rules pursuant to Iowa Code § 47.2.
4.

Jurisdiction is proper with this Court as the parties are citizens of Iowa and venue

is proper because Defendant Paul Pate in his official capacity as Iowa Secretary of State is a state
agency located in Polk County, Iowa and is the commissioner of all state elections. (collectively
“Election Official Defendants”).
1

 BACKGROUND
5.

This action concerns the November 2018 general election, and the failure of

Election Official Defendants to count all of the validly cast absentee ballots in House District 55.
6.

Any registered voter may vote in the General Election by absentee ballot. IOWA

CODE § 53.1.
7.

“In order for the ballot to be counted, the return envelope must be received in the

commissioner’s office before the polls close on Election Day or be clearly postmarked by an
officially authorized postal service or bear an intelligent mail barcode traceable to a date of entry
into the federal mail system not later than the day before the election and received by the
commissioner not later than noon on the Monday following the election.” IOWA CODE § 53.17(2)
(emphasis added).
8.

Absentee ballots are counted by the absentee and special voters precinct board

(“ASVP Board”) under the direction of the county auditor. IOWA CODE § 53.23(2).
9.

The ASVP Board reconvenes and reviews any ballots that are received after the

initial count and determines their eligibility. IOWA CODE § 50.22.
10.

The ASVP Board reports vote totals to the county supervisors to canvass. IOWA

CODE § 50.22(4).
11.

The county supervisors conduct a canvass of the vote to certify the totals. IOWA

CODE § 50.24(3).
12.

Prior to the canvass adjourning, the canvass board shall “contact the chairperson

of the special precinct board before adjourning and include in the canvass any write-in votes
tallied and recorded by the special precinct board or any absentee ballots which were received
after the polls closed in accordance with section 53.17 and which were canvassed by the special
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 precinct board after election day.” IOWA CODE § 50.24 (2).
13.

On or after Election Day, November 6, 2018, but prior to the canvass of the votes,

the Winneshiek County Auditor received thirty-three absentee ballots returned via the United
States Postal Service. Exhibit 1, Affidavit of Kayla Koether ¶ 4.
14.

Twenty-nine of the ballots were received on November 7, 2018. Exhibit 1 ¶ 5.

15.

Two of the thirty-three ballots arrived during the canvass. Exhibit 1 ¶ 6.

16.

The fact that these ballots were received the day after the election makes it highly

probable that they were mailed prior to “the day before the Election,” since mail travels from
Winneshiek County to Waterloo and then returns to Winneshiek for delivery. This process,
typically takes two days. Exhibit 1 ¶ 7.
17.

All thirty-three ballots contained an intelligent mail barcode, but not a stamp

canceling postmark. Exhibit 1 ¶ 9-10; Exhibit 2, Affidavits of Liam Murphy and Janet
Alexander, and image of Liam’s ballot.
18.

Since the ballots did not contain a stamp canceling postmark, the Election Official

Defendants have refused to count the ballots. Exhibit 1 ¶ 9.
19.

Post office policy states that stamp canceling postmarks are not required be placed

on postage paid mail, as is used with absentee ballots. Additionally, ballots are too thick to run
through the stamp canceling postmark machine. Exhibit 3, 1-1.3 Postmarks, USPS, Nov. 28,
2018, https://about.usps.com/handbooks/po408/ch1_003.htm.
20.

The intelligent mail bar code contains information regarding when a mail piece was

placed into the custody of the United States Postal Service. Exhibit 4, 1-1.3 Intelligent Mail,
USPS, Nov. 28, 2018, https://about.usps.com/postal-bulletin/2010/pb22277/html/info_005.htm.
21.

Both the Winneshiek County Auditor and the Iowa Secretary of State have
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 refused to obtain the information from the United States Postal Service. Exhibit 1 ¶ 8.
22.

The post office in Waterloo, Iowa is the distribution center for Winneshiek

County and has the ability to read the intelligent mail bar code. Exhibit 1 ¶ 7.
23.

The difference in the vote count between Ms. Koether and her opponent is only

nine votes. Exhibit 1 ¶ 14.
24.

The thirty-three voters have a constitutional right to have their votes counted if

they were returned in accordance with the deadline set out in Iowa law.
25.

In Fayette County, Election Officials, through the ASVP Board, counted twenty-

five ballots received on or after Election Day, approximately twelve of which did not contain
stamp canceling postmarks and were not checked for dates on which they were placed into the
federal mail system. Exhibit 1 ¶ 13.
26.

The thirty-three voters in Winneshiek County have the same right to have their

vote counted in the Iowa House District 55 election as the voters in Fayette County, but have not
been given that opportunity. Exhibit 1 ¶ 11, 13.
27.

A writ of mandamus is appropriate for this District Court to order the Election

Official Defendants to carry out their duties as imposed by Iowa law. IOWA CODE § 661.1; See
also Schwarz Farm Corp. v. Board of Sup'rs of Hamilton County, 196 N.W.2d 571 (Iowa 1972)
(holding the purpose of mandamus is to compel a person to perform acts where they are
obligated to do so under the law).
28.

This District Court has authority to order Defendant Election Officials to perform

their legal responsibilities. See Bredt v. Franklin Cty., 227 Iowa 1230, 290 N.W. 669 (1940)
(stating a district court had the authority to issue a writ to a county official); Zellmer v. Smith,
221 N.W. 220 (1928) (stating a district court has the authority to issue a writ to compel an officer
4

 of the state to perform and official duty).
COUNT 1:
TEMPORARY INJUNCTION
29.

Plaintiff incorporates herein the allegations of paragraphs one through twenty-

nine above.
30.

The Iowa Secretary of State has scheduled a meeting to certify the Iowa House

District 55 election on Monday, December 3. 2018. Exhibit 1 ¶ 16.
31.

Plaintiff will be irreparably harmed if the election is certified without the thirty-

three absentee ballots being investigated and counted.
32.

Plaintiff is entitled to relief which includes restraining the Election Official

Defendants from certifying the House District 55 election results until all ballot issues are
adjudicated.
33.

Pursuant to I.R.C.P. 1.1502, Plaintiff requests that the Court enter a Temporary

Injunction restraining the Iowa Secretary of State from certifying the election.
34.

Pursuant to I.R.C.P. 1.1508, a bond in the instance case should be waived.

35.

Pursuant to I.R.C.P. 1.1504, the undersigned attorney certifies that no petition or

application for the same relief has been filed and refused by any court of competent jurisdiction.
WHEREFORE, Plaintiff prays the Court issue an immediate temporary Writ of
Injunction, without a hearing, enjoining and restraining the Iowa Secretary of State from
certifying the results of the Iowa House District 55 election.
COUNT 2:
WRIT OF MANDAMUS TO OBTAIN INFORMATION FROM THE UNITED STATES
POSTAL SERVICE
36.

Plaintiff incorporates herein the allegations of paragraphs one through thirty-five

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 above.
37.

Election Official Defendants’ duties include administering Iowa’s elections in

accordance with Iowa law.
38.

Elections Official Defendants are required to perform the following duties:
If the postmark is illegible, missing, or dated on or after election day, the
commissioner shall attempt to verify the absentee ballot’s entry into the
federal mail system by using the [intelligent mail barcode] Tracing
information for the ballot. The commissioner shall provide all of the
materials to the board.

Iowa Admin. Code 721—21.14(2)(b).
39.

This duty is not discretionary.

40.

Iowa Code does not define intelligent mail barcode.

41.

The barcodes on the thirty-three absentee ballots contain intelligent mail barcodes

that contain information regarding when the ballots were placed into the federal mail system.
Exhibit 1 ¶ 10.
42.

The Election Official Defendants refuse to obtain the information from the United

States Postal System thereby abrogating their responsibilities to facilitate elections and
intentionally disenfranchising voters. Exhibit 1 ¶ 8-9.
43.

Equal Protection must be afforded to citizens and classes of citizens who are

similarly situated. Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009) (quoting Racing Ass’n of
Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa 2004) (citations omitted)). The counties are
similarly situated because they are voting in the same election and the votes in question in both
Winneshiek and Fayette County will affect the same election. See Varnum, 763 N.W.2d at 883.
44.

Despite requests to the Election Official Defendants, they continue to refuse to

obtain the information. Exhibit 1 ¶ 8-9.
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 45.

As a result of their refusal, Plaintiff has sustained damage and may sustain

damages in the future. Exhibit 1 ¶ 14-15.
46.

Without reviewing the information in the intelligent mail barcodes, the outcome

of the election will be uncertain since thirty-three votes are not considered and the difference in
the total votes between the two candidates is only nine votes.
47.

The intelligent mail barcodes are reused every thirty to forty-five days and if the

information is not obtained, the results of the election will be open to challenge for election
misconduct by the Election Official Defendants. Exhibit 1 ¶ 12.
48.

Plaintiff has no other plain, speedy, or adequate remedy.

49.

This Court may enter a temporary order to prevent damage or injury to Plaintiff

until the action is decided. IOWA CODE § 661.16.
WHEREFORE, Plaintiff prays for an emergency hearing regarding this claim and an
emergency writ of mandamus requiring Election Officials Defendants to immediately obtain the
date the thirty-three ballots entered into the federal mail system before it is lost and for all other
appropriate orders; and for a judgment for Plaintiff's costs.
COUNT 3:
WRIT OF MANDAMUS TO COUNT THE ABSENTEE BALLOTS PLACED INTO THE
MAIL SYSTEM PRIOR TO ELECTION DAY
50.

Plaintiff incorporates herein the allegations of paragraphs one through forty-nine

51.

Election Official Defendants’ duties include administering Iowa’s elections in

above.

accordance with Iowa law.
52.

Elections Official Defendants are required to perform the following duties:

If the postmark or IMb Tracing information indicates that an absentee ballot was
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 received by the deadline specified in Iowa Code chapter 53, the ballot shall be
included for canvass by the absentee and special voters precinct board (board).
If the board concludes that the IMb Tracing information verifies that the absentee
ballot entered the federal mail system by the deadline specified in Iowa Code
chapter 53, the absentee ballot shall be counted.
Iowa Admin. Code 721—21.14(2)(a & g).
53.

This duty is not discretionary.

54.

The Election Official Defendants refuse to count the absentee ballots. Exhibit 1

55.

Despite requests to the Election Official Defendants, they continue to refuse to

¶ 9.

obtain the information and then count the ballots.
56.

As a result of their refusal, Plaintiff has sustained damage and may sustain

damages in the future. Exhibit 1 ¶ 14-15.
57.

Plaintiff has no other plain, speedy, or adequate remedy.

WHEREFORE, Plaintiff prays for an emergency writ of mandamus requiring Election
Officials Defendants to count the votes after conformation that the ballots were placed in the
federal mail system by the deadline in Iowa law and for all other appropriate orders; and for a
judgment for Plaintiff's costs.
/s/ Shayla McCormally_________________
Shayla L. McCormally
AT0009611
Kolby P. Warren
AT0013857
MCCORMALLY & COSGROVE, P.L.L.C.
2501 Grand Avenue
Des Moines, Iowa 50312
Telephone:
515-218-9878
Facsimile:
515-218-9879
shayla@mciowalaw.com
kolby@mciowalaw.com
ATTORNEYS FOR PLAINTIFF

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