Democrat lawyer Marc Elias argued Monday in a filing with the U.S. House Committee on House Administration that his client, Rita Hart, did not need to exhaust state legal remedies before asking for an Iowa congressional race to be overturned.
Hart lost the race for Iowa’s second congressional district by six votes to Rep. Mariannette Miller-Meeks (R-IA), after all late ballots were counted and after a recount. Miller-Meeks’s narrow victory was certified by Iowa state election authorities.
Elias, who represented Democrats against President Donald Trump’s challenge to the 2020 election results, now claims that there are 22 other ballots that should have been counted. Rather than filing a challenge in state court, he has turned to the Democrat-run House to invoke its powers under the Federal Contested Elections Act (FCEA) to unseat Miller-Meeks and seat Hart. It would be the first time since the 1980s that the House had used that power — also, when Democrats had control.
In his filing, responding to questions from the committee, Elias said the fact that he and Hart did not take their case to state court should have no bearing on the House’s decision (original emphasis):
First … neither the FCEA nor any other rule adopted by the House required Contestant Hart to first bring a contest in state court. The plain language of the FCEA does not require a contestant to exhaust all state remedies before filing a notice of contest—a notable omission, given that Congress routinely includes statutory exhaustion requirements in other contexts. The Committee should not read into the FCEA an exhaustion requirement where none exists.
Moreover, there is no uniform requirement found in House precedent that a contestant must exhaust every possible state judicial remedy before filing a notice of contest.
Second, Contestant Hart had an overriding practical reason for not bringing a state contest: the state’s procedures would not have provided a sufficient process to ensure that the 22 votes identified in this contested election case would have been counted, let alone achieve a full hand recount using the rules and procedures articulated in this brief. … Instead, this forum provides the best—indeed, the only—means of ensuring that every vote is counted and that the voice of every Iowan is heard.
Breitbart News reported Tuesday that Elias may struggle to convince enough Democrats to overturn the result, as more and more members of his own party are publicly opposing his effort. Democrats only have a slim majority in the House, meaning that they do not have much room to lose votes before overturning the Iowa congressional race becomes impossible.
In 2020, Elias represented Democrats in their efforts to overturn existing state laws and rules about voting. Elias is also the lawyer who helped fund the fraudulent “Russia dossier,” an attempt to dig up dirt on then-candidate Donald Trump. The “dossier” made its way to the FBI, where it served as the basis for spying on Trump campaign aide Carter Page.
The U.S. Court of Appeals for the Fifth Circuit recently sanctioned Elias for violating his “duty of candor to the court.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.