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Sometimes common sense and the letter of the law are entirely unrelated.

So it is in northeast Iowa’s disputed House District 55.

Incumbent Republican Michael Bergen “won” reelection in November after receiving nine more counted votes than his Democratic challenger, Kayla Koether.

Uncounted, however, were 29 absentee ballots mailed before Election Day, which is where common sense and the letter of the law collide.

Under Iowa law absentee ballots are considered valid if they are either received, or bear a postmark indicating they were mailed, prior to the election.

But the U.S. Postal Service no longer consistently postmarks mail.

In many cases mail is marked with postal barcodes, which like postmarks provide confirmation as to when mailing occurred.

The 29 disputed absentee ballots bear such codes.

The Iowa Legislature passed a law two years ago allowing counties to utilize “intelligent barcode” technology to confirm the mailing date of barcoded ballots.

This option is voluntary, adds about 3 cents to the cost of processing each ballot and requires addition staff time.

Only seven counties, including Cerro Gordo, currently utilize this option.

As a result ballots mailed on time and in good faith by Iowa voters in the other 92 counties are frequently discarded, including those 29 ballots in District 55.

Koether challenged the election results in Iowa court, but Judge Scott Beattie ruled language in Iowa’s code and constitution give the state legislature jurisdiction over such disputes.

So the fate of those 29 votes — and the potential outcome of the election — rests in the collective hands of the other 99 Iowa Representatives who will convene the 88th General Assembly on Jan. 14.

Republicans will control the House, and their initial instinct might be to use the letter of the law to protect one of their own.

In the name of fairness and common sense, they should fight this instinct.

This is a case where the wording of the law has not kept up with the times.

Since the post office no longer consistently postmarks mail, legislators should delete the reference to postmarks from state statutes altogether.

Alternatives going forward would be to require all counties to use the intelligent barcode system, to simply accept postal barcodes, or to stipulate that all ballots must be received, rather than simply mailed, prior to the election.

In any case, the law should be amended to make the requirements clear and consistent for all Iowans.

As to those votes already cast, there are two options.

The intention of Iowa law at the time it was crafted was clearly to ensure ballots mailed prior to an election would be considered valid.

House members could ignore the letter of the law and uphold its intent by allowing those District 55 votes to be counted.

If that’s too much for the “by the book” crowd, the alternative would be to pass a bill retroactively accepting 2018 ballots verified to have been mailed on time by postal barcode.

Purists might argue this would amount to changing the rules mid-game, but actually it would only be doing the right thing by updating the rules to reflect current mailing practices and the original intention of the law.

Republicans have passed several laws they claim are aimed at ensuring election integrity and which Democrats counter are intended to suppress the votes of liberal-leaning constituencies.

This is an opportunity for Republicans to demonstrate they value voter participation over partisan advantage while incurring minimal political risk.

There’s at least an even chance those 29 votes would not overcome the nine-vote advantage Bergan currently enjoys.

And even if they did lift Koether to victory, Republicans would still control the House 53 to 47.

The potential loss of one non-decisive vote would seem a small price to pay for the goodwill Republicans could engender by doing what is clearly the right thing.

So what will it be: common sense or the letter of the law?

North Iowa's 205 most popular political cartoons 2018

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Tim Ackarman, a regular columnist for the Globe Gazette, lives in Miller.


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