Nageak v. Mallott

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THE SUPREME COURT OF THE STATE OF ALASKA
BENJAMIN N. NAGEAK, )
)
Supreme Court Nos. S-16462/16492/
Appellant, )
16494 (Consolidated)
)
v. )
Division of Elections Recount Appeal
)
BYRON MALLOTT, Lieutenant )
OPINION
G overnor of the State of Alaska, and )
JOSEPHINE BAHNKE, Director of )
No. 7286 – August 31, 2018
the Alaska Division of Elections, )
)
Appellees, )
)
and )
)
D EAN WESTLAKE, )
)
Intervenor. )
_______________________________ )
)
BYRON MALLOTT, Lieutenant )
G overnor of the State of Alaska, and )
Superior Court No. 3AN-16-09015 CI
JOSEPHINE BAHNKE, Director of )
the Alaska Division of Elections, )
)
Appellants and )
Cross-Appellees, )
)
v. )
)
BENJAMIN N. NAGEAK, ROB )
ELKINS, ROBIN D. ELKINS, )
LAURA WELLES, and LUKE )
WELLES, )
)
Appellees and )
Cross-Appellants, )
)
and )
)
DEAN WESTLAKE, )
)
Intervenor. )
_______________________________ )
Appeal in File No. S-16462 from the Alaska Division of
Elections. Appeal in File Nos. S-16492/16494 from the
Superior Court of the State of Alaska, Third Judicial District,
Anchorage, Andrew Guidi, Judge.
Appearances: Timothy A. McKeever and Stacey C. Stone,
Holmes Weddle & Barcott, P.C., Anchorage, for Appellant
Nageak and Appellees and Cross-Appellants Nageak, Elkins,
Elkins, W elles, and Welles. Laura Fox, Joanne Grace, and
Margaret Paton Walsh, Assistant Attorneys General,
Anchorage, Elizabeth M. Bakalar, Assistant Attorney
General, and Jahna Lindemuth, Attorney General, Juneau, for
Appellees and Appellants and Cross-Appellees Mallott and
Bahnke. Thomas P. Amodio and Debra J. Fitzgerald, Reeves
Amodio, LLC, Anchorage, for Intervenor.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
STOWERS, Chief Justice.
WINFREE, Justice, dissenting in part.
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I. INTRODUCTION
A very close Alaska Democratic Party primary election was held in House
District 40 in 2016 in which, after a recount, Dean Westlake was declared the victor by
eight votes. The defeated candidate, Benjamin Nageak, brought two legal challenges to
the primary results. He and four others contested the election in the superior court
pursuant to AS 15.20.540. He also filed a direct appeal of the recount in this court
pursuant to AS 15.20.510. We stayed the direct appeal and, after a trial, the superior
court granted relief on the election contest. The court found that election officials in
Shungnak, who gave ballots for both the Alaska Democratic Party and Alaska
Republican Party primaries to every voter, had committed malconduct that changed the
outcome of the election. The court ordered the Director of the Division of Elections to
certify Nageak as the winner after proportionately reducing the votes from Shungnak.
The Division and Westlake appeal the superior court’s rulings against them. Nageak
cross-appeals the court’s rulings against him. We consolidated the appeal from the
superior court in the election contest with the recount appeal from the Division, and we
reversed the superior court’s decision and reinstated the Director’s certification of
Westlake as the winner of the election. We indicated that an opinion would follow. This
is our opinion.
II. FACTS AND PROCEEDINGS
A. August 16, 2016 Primary Election
These appeals concern the election of Dean Westlake as the Alaska
Democratic Party’s nominee for state representative from House District 40 in the
August 16, 2016 primary election. House District 40 consists of the North Slope
Borough, the Northwest Arctic Borough, and part of the Unorganized Borough, an area
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larger than most states.1 House District 40 had been represented by Benjamin N.
Nageak, a Democrat who caucused with the Republicans in the legislature. He was
challenged in the 2016 primary by Dean Westlake, a Democrat supported by people and
organizations associated with the Democratic Party. There were no other candidates
running for House District 40 representative in any other party’s primary.
The Division of Elections runs all state and federal elections in Alaska.2
State law governs primary election contests, but parties choose who may vote in their
primary elections.3 The Republican Party allows only registered Republican,
Undeclared, and Non-Partisan voters to vote in its primary. The Alaskan Independence,
Democratic, and Libertarian parties allow all voters to vote in their primaries.
1
The total area of House District 40 under the 2011 Redistricting Plan, which
contained only the North Slope Borough and the Northwest Arctic Borough, was
135,545.22 square miles. See A LASKA REDISTRICTING BD ., A MENDED PROCLAMATION
HOUSE DISTRICTS: HOUSE DISTRICT 40 (2011),
http://www.elections.alaska.gov/doc/maps/2011-districts/HD40.pdf (district for 2012
elections); U.S. Census Bureau, Population, Housing Units, Area, and Density: 2010
— United States — County by State; and for Puerto Rico, A MERICAN FACT FINDER ,
https://factfinder.census.gov/bkmk/table/1.0/en/DEC/10_SF1/GCTPH1.US05PR (last
visited July 11, 2018). Only four states are larger — Alaska (665,384.04 square miles),
Texas (268,596.46 square miles), California (163,694.74 square miles), and Montana
(147,039.71 square miles). U.S. Census Bureau, supra. And the 2013 Redistricting
Plan added precincts for the Allakaket, Bettles, and Hughes areas to House District 40,
substantially increasing the size of the district. House District 40 and statewide district
maps are attached in the appendix.
2
AS 15.10.105(a); AS 15.15.010; see also AS 15.30.110-.120; AS
15.30.090.
3
AS 15.25.060(b); see also Cal. Democratic Party v. Jones, 530 U.S. 567
(2000) (holding that political parties may refuse to participate in primaries in which
voters can vote for any candidate regardless of party affiliation); O’Callaghan v. State,
Dir. of Elections, 6 P.3d 728, 730 (Alaska 2000) (applying this ruling to Alaska).
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Consequently, the Division prepares two ballots for primary elections — a Republican
ballot and a combined party ballot, known as the Alaskan Independence-Democratic-
Libertarian ballot or ADL ballot. Registered Alaskan Independence, Democratic, and
Libertarian voters may vote only the ADL ballot, while Republican, Undeclared, and
Non-Partisan voters may choose to vote either the ADL or the Republican ballot.
Voters in the House District 40 primary therefore could potentially choose
one of two ballots. The two ballots are reproduced below.
ADL ballot:
United States Senator (vote for one)
Blatchford, Edgar Democrat
Metcalfe, Ray Democrat
Stevens, Cean Libertarian
United States Representative (vote for one)
Watts, Jon B. Libertarian
Hibler, William D. “Bill” Democrat
Hinz, Lynette “Moreno” Democrat
Lindbeck, Steve Democrat
McDermott, Jim C. Libertarian
State Senator District T (vote for one)
Olson, Donald C. “Donny” Democrat
State Representative District 40 (vote for one)
Westlake, Dean Democrat
Nageak, Benjamin P. “Piniqluk” Democrat
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Republican ballot:
United States Senator (vote for one)
Murkowski, Lisa Republican
Kendall, Paul Republican
Lamb, Thomas Republican
Lochner, Bob Republican
United States Representative (vote for one)
Young, Don Republican
Heikes, Gerald L. Republican
Tingley, Jesse J. “Messy” Republican
Wright, Stephen T. Republican
There were no Republican candidates for either House District 40 or Senate District T.
There are multiple ways to cast a ballot. A voter may vote in person by
paper ballot at a precinct on election day.4 A voter may instead choose to vote in-person
by touch screen machine. If an election official doubts a voter’s qualifications the voter
will be required to submit a questioned ballot, which is placed in a separate envelope for
later review.5 A voter who cannot go to the precinct because of a disability may submit
a special needs ballot, which a designated representative delivers to the polling place.6
A voter may cast an absentee ballot by mail by requesting a ballot be sent by mail and
then mailing back the ballot in an absentee ballot envelope.7 A voter may also cast an
4
AS 15.07.010.
5
Id.
6
AS 15.20.072.
7
AS 15.20.081(a)-(e).
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absentee ballot in person with an absentee voting official or an election supervisor.8
The Director of the Division certified the results of the primary election
contest between Westlake and Nageak on September 6, 2016. The Director certified
Westlake as the winner of House District 40 with 819 votes to Nageak’s 815 votes, a
four-vote margin of victory. On September 12, 2016, after conducting a recount
requested by Nageak, the Director again certified Westlake as the winner with 825 votes
to Nageak’s 817, an eight-vote margin of victory.
Nageak and four others filed an election contest complaint in the superior
court against the Lieutenant Governor9 and the Director (collectively the Division)
pursuant to AS 15.20.540;10 Nageak also appealed the recount directly to this court
pursuant to AS 15.20.510.11 Westlake joined both proceedings as an intervenor. We
8
AS 15.20.061.
9
See AS 15.10.105(a) (“The lieutenant governor shall control and supervise
the division of elections.”).
10
AS 15.20.540(1) provides that “[a] defeated candidate or 10 qualified voters
may contest the nomination or election of any person . . . upon . . . malconduct, fraud,
or corruption on the part of an election official sufficient to change the result of the
election.” The other election challengers that joined Nageak in filing the election contest
case in the superior court were qualified voters pursuant to AS 15.20.540.
11
AS 15.20.510(2) provides that
[a] candidate or any person who requested a recount who has
reason to believe an error has been made in the recount . . .
involving candidates for the legislature or Congress or the
office of governor and lieutenant governor may appeal to the
supreme court . . . . The inquiry in the appeal shall extend to
the questions whether or not the director has properly
determined what ballots, parts of ballots, or marks for
candidates on ballots are valid, and to which candidate . . . the
(continued...)
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stayed the recount appeal until the superior court could rule in the election contest, and
we consolidated the recount appeal with the appeal of the superior court ruling.
B. Nageak’s Allegations Of Election Errors
Nageak alleges myriad problems with the election. His main contention is
that election officials in Shungnak erred by giving all voters both the ADL and the
Republican ballots. Election officials in Shungnak gave all 50 in-person voters and one
questioned-ballot voter both ballots, resulting in 102 total ballots being cast from
Shungnak across the different primaries. Westlake won the in-person vote in Shungnak
with 47 votes to Nageak’s 3. The result of the questioned ballot is unknown as it was
counted with questioned ballots from other precincts.
Nageak also alleges problems with the two ballot system in Kivalina, where
7 voters insisted on casting both an ADL and a Republican ballot. Local election
officials in Kivalina made each voter cast one of these ballots as an in-person ballot and
one as a questioned ballot. In the initial vote tally, the Director did not count these 7
questioned ballots, but in the recount the Director counted them. Of these 7 ballots, 5
were Republican ballots and 2 were ADL ballots. Westlake and Nageak each received
1 vote. Westlake won Kivalina with 38 votes to Nageak’s 22 votes.
In addition Nageak alleges a problem with special needs ballots in
Buckland. A special needs ballot allows a voter who cannot go to the precinct because
of a disability to designate a representative to pick up the ballot and bring it to the voter.12
The voter completes the ballot and signs a voter’s certificate with the representative
11
(...continued)
vote should be attributed.
12
AS 15.20.072(a)-(b).
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witnessing the voter’s signature.13 The representative then returns the ballot to an
election official.14 In Buckland 12 voters used special needs ballots. Election officials
served as both representatives and election officials. Westlake won Buckland with 43
votes to Nageak’s 11 votes.
Nageak alleges many more problems. Nageak alleges that Ambler election
officials did not timely return election materials after the election.15 This meant that the
Director’s initial election results relied solely on the report from the precinct on election
night.16 Nageak alleges that in Browerville election officials required Republicans
seeking to vote the ADL ballot to cast a questioned ballot. The Director counted these
questioned ballots. Nageak won Browerville with 276 votes to Westlake’s 46 votes.
Nageak also alleges that at least one convicted felon who was ineligible to vote voted,
that voters in multiple precincts did not sign the precinct registers, that election workers
in multiple precincts did not complete and sign the precinct registers, that questioned
ballot voters did not sign the questioned ballot voter registers, that election officials did
not complete and sign the absentee voting accountability reports, that election officials
did not request identification from voters, that election officials destroyed or failed to
turn in ballot stubs, that election officials telephoned inaccurate results on election night,
that election officials did not properly tally votes or complete tally books, that election
13
AS 15.20.072(d).
14
AS 15.20.072(e).
15
Nageak’s only evidence of this is that election materials sent from Ambler
by mail had not arrived in Nome as of September 6, 2016. This alone does not support
that election officials were untimely in sending the materials. Further, the numbers from
Ambler were available by the time of the recount.
16
AS 15.15.440 contemplates that election materials may not arrive in time
and allows the Director to rely on a report from the precinct.
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officials incorrectly marked spoiled ballots, that election officials did not sign certificates
of ballot counts, and that precincts had fewer than the statutorily required number of
election officials. The Division disputes some of these allegations, but these questions
of fact are not material to our decision.
C. Election Contest Trial In Superior Court
The superior court held an expedited trial on Nageak’s election contest
complaint. On October 6, 2016, the court issued a written opinion ordering the Director
to decrease Westlake’s vote total by 12 and Nageak’s vote total by 2 and to certify
Nageak as the winner of the primary. The court ruled against the Division in its actions
in counting all votes from Shungnak and in counting the questioned ballots of the voters
who voted twice in Kivalina. The court ruled in favor of the Division on all of Nageak’s
other arguments.
In addressing the double voting in Shungnak, the superior court ruled that
“[t]he actions of the election officials . . . violated clearly established constitutional rights
as well as the requirements of statutory law” and that “[t]he actions biased the vote
because they occurred in a precinct that lopsidedly favored Mr. Westlake.” It also found
“that election officials in Shungnak acted in reckless disregard of the requirements of
law” because “[t]hey did not participate in any advance training offered by the Division
for the 2016 election; they did not review the materials sent to them; they did not review
and follow the instructions on the ballot choice poster and placards sent to them; and they
knowingly gave every voter two ballots.” The court made these findings “purely on the
basis of [the election officials’] actions” in receiving these materials but nonetheless
handing out two ballots, finding “[t]his conduct cannot be characterized as an ‘honest
mistake.’ ”
The superior court next considered whether the malconduct by election
officials changed the result of the election and concluded that it did. Two people who
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were accepted as expert witnesses testified at trial. Randolph Ruedrich, a former Alaska
Republican Party chair, testified for Nageak. John Henry Heckendorn, a partner in the
firm that managed Westlake’s campaign, testified for Westlake.
Ruedrich testified that an average of 12.75 Shungnak voters chose
Republican ballots in primary elections since 2008.17 He proposed that the court
proportionately reduce the vote totals of the candidates in Shungnak by 12.75 votes to
approximate what would have happened if Shungnak voters had been forced to choose
between ballots in this election, but for the error in giving all Shungnak voters both
Republican and ADL ballots. This leads to a reduction of 11.99 votes from Westlake and
0.76 votes from Nageak.
Heckendorn testified that the 2016 primary election was most like the 2012
primary election in that in both years there were no seriously competitive contests on the
Republican ballot and there were competitive contests on the ADL ballot. He also
presented a spreadsheet of the percentage of voters in District 40 as a whole who chose
ADL ballots in the past four primary elections. This spreadsheet showed that the
percentage of voters who chose the ADL ballot varied significantly from election to
election, but it showed that the percentage of voters in House District 40 excluding
Shungnak who chose the ADL ballot in 2016 was almost identical to 2012, another
election where there were no competitive contests on the Republican ballot. He therefore
proposed that the court should use the percentage of voters who chose the ADL ballot
in Shungnak in 2012 to estimate the number of voters who would have chosen the
Republican ballot in 2016 but for the error in giving all Shungnak voters both
Republican and ADL ballots.
17
The number of voters who chose each ballot is unavailable. Instead both
parties have looked to the race on each ballot with the most total votes cast and accepted
this as the number of voters who chose to vote that ballot. We do so as well.
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The superior court credited the testimony of Ruedrich. The court explained
that Ruedrich “performed a precinct-level analysis of how the issuance of two ballots
affected the vote,” while Heckendorn “presented a mathematical ‘what if’ analysis of the
overall District 40 vote” and “[i]n a conspicuous omission . . . did not present an analysis
of the Shungnak precinct vote.” Since Ruedrich’s method of averaging the total voters
choosing the Republican ballot in past elections resulted in Westlake losing 11.99 votes
and Nageak losing 0.76 votes, and since the election was decided by only 8 votes, the
court concluded that the double voting in Shungnak changed the result of the election.
It ordered the Director to reduce Westlake’s vote total by 11 and Nageak’s vote total by
1.
Regarding the Kivalina questioned ballots, the court heard testimony from
election officials that tended to suggest the voters who had insisted on casting two ballots
cast their first-choice ballot as an in-person ballot and their second-choice ballot as a
questioned ballot. The court ruled that the Director erred in counting the questioned
ballots. Since one questioned ballot was for Westlake and one for Nageak, the court
ordered the Director to reduce each candidate’s vote total by one vote.
As to the Buckland special needs ballots, the court found that nothing in
AS 15.20.072 governing special needs ballots prohibits an election official from also
serving as a special needs voter’s personal representative. The evidence in the record
showed that the Division substantially complied with the statute’s requirements.
With respect to Nageak’s other alleged errors, the court ruled that they
“d[id] not show a significant deviation from statutory and constitutional norms” or
“knowing or reckless indifference to election laws” and that they “did not result in any
bias for one candidate or another. In short, these irregularities were not [systemic], and
were instead, isolated and random.” The court therefore ruled against Nageak on all his
other alleged errors.
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The Division and Westlake appeal the superior court’s rulings against them.
Nageak cross-appeals the court’s rulings against him.
D. Recount Appeal
Nageak also appeals the Division’s recount. He argues that we should
exclude all 51 votes from Shungnak because they were cast in violation of the law.
Alternatively, he argues that we should apply a proportionate reduction analysis as the
superior court did in the election contest. He argues that we should exclude the in-person
and questioned ballots of the voters who chose to cast two ballots in Kivalina because
casting two ballots violates the law. And he argues that all special needs ballots in
Buckland should not be counted.
We consolidated this appeal with the appeal of the superior court judgment in the
election contest. In ruling on this recount appeal we have considered the record as
presented by the parties, which includes all records and transcripts from the superior
court trial on the election contest complaint. The material facts in the appeal are
undisputed.
E. This Court’s Order
On October 12, 2016 we issued an order reversing the superior court’s
decision with respect to the double voting in Shungnak and reinstating the Director’s
certification of Westlake as the winner of the election. We affirmed the superior court’s
decision with respect to all other questions. Our order is attached in the appendix to this
opinion. We stated in our order that a written opinion explaining the order would be
forthcoming. This opinion now explains our earlier order.
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III. STANDARD OF REVIEW
A recount appeal reviewing the Division’s determination is under our direct
appellate jurisdiction.18 “We exercise independent judgment when interpreting statutes
which do not implicate an agency’s special expertise or determination of fundamental
policies.”19
Whether the conduct of election officials constitutes malconduct and
whether that malconduct was sufficient to change the result of an election are questions
of law.20 “We review questions of law de novo, ‘adopting the rule of law most
persuasive in light of precedent, reason, and policy.’ ”21 We review underlying findings
of fact for clear error, which “exists when ‘our review of the record leaves us with the
definite and firm conviction that the superior court has made a mistake.’ ”22
IV. DISCUSSION
This opinion addresses both the appeal from the superior court in the
election contest and the appeal from the Division in the recount. In Willis v. Thomas we
outlined the difference between an election contest and a recount appeal:
18
Cissna v. Stout, 931 P.2d 363, 366 (Alaska 1996).
19
Id (citing Keane v. Local Boundary Comm’n, 893 P.2d 1239, 1241 (Alaska
1995)).
20
Hammond v. Hickel, 588 P.2d 256, 258 (Alaska 1978) (“This ultimate legal
conclusion is necessarily predicated on two lesser, but critical conclusions of law: (1)
a finding of malconduct on behalf of election officials and (2) a finding that such
malconduct was sufficient to change the result of the election.”).
21
Comsult LLC v. Girdwood Mining Co., 397 P.3d 318, 320 (Alaska 2017)
(quoting Girdwood Mining Co. v. Comsult LLC, 329 P.3d 194, 197 (Alaska 2014)).
22
Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508
(Alaska 2015) (quoting Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)).
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In an election contest where no fraud, corruption or
ineligibility of a party is alleged, the evidence presented must
demonstrate the existence of malconduct sufficient to change
the results of the election. . . . In contrast, the inquiry in a
recount appeal is whether specific votes or classes of votes
were properly counted or rejected. The concept of
malconduct does not enter into the question, except insofar as
particular acts or shortcomings of election officials may have
resulted in the improper counting or rejecting of votes.[23]
A recount appeal may necessarily involve going beyond the four corners of the ballot “to
ensure that a vote was cast in compliance with the requirements of Alaska’s election
laws.”24 But this inquiry is in service of the end question whether the vote should have
been counted and not whether election officials committed malconduct sufficient to
change the results of the election.25 As we explain in greater detail below, we address
claims with respect to Shungnak and Buckland under the election contest statute and
claims with respect to Kivalina under the recount statute.
23
600 P.2d 1079, 1081 (Alaska 1979).
24
Id. at 1082.
25
Id. at 1081-82. The Division asks us to announce a rule “that a recount
appeal is solely a review of the Director’s decisions on how to count identifiable votes
at the recount.” Under the Division’s proposed rule the recount appeal would be limited
to whether the “votes have been totaled up correctly” and whether “ballots that have been
challenged and segregated” should count. The Division acknowledges that this proposed
rule would overturn a significant am ount of our precedent, likely including Willis,
Fischer v. Stout, 7 41 P.2d 217 (Alaska 1987), and Finkelstein v. Stout, 774 P.2d 786
(Alaska 1989). We decline to do this. We agree with our statement in Willis that we
must be able to look past the ballot to determine whether the votes were properly
counted. We will ad here to our previous rulings on this issue, except for one part of
Finkelstein. See infra notes 39-46 and accompanying text.
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A. Recount Appeal26
Alaska Statute 15.20.510 allows a candidate to appeal the Division’s
recount determination to this court to determine whether the votes were properly
counted. When deciding this question, the overriding principle “is that the voter shall,
ordinarily, have his vote recognized and the candidate be given the office to which he is
elected if the votes are cast and returned under such circumstances that it can be said it
represents the voice of the majority of the voters participating.”27 “The right of the
citizen to cast his ballot and thus participate in the selection of those who control his
government is one of the fundamental prerogatives of citizenship and should not be
impaired or destroyed by strained statutory constructions.”28 We therefore have
explained:
All provisions of the election law are mandatory, if
enforcement is sought before election in a direct proceeding
for that purpose; but after election all should be held
directory only, in support of the result, unless of a character
to affect an obstruction to the free and intelligent casting of
the vote or to the ascertainment of the result, or unless the
provisions affect an essential element of the election, or
unless it is expressly declared by the statute that the particular
act is essential to the validity of an election, or that its
26
The Division argues that Nageak only challenged the Kivalina ballots in the
recount and that the rest of his claims should be considered waived. We disagree. “[O]ur
obligation under AS 15.20.510 is to review any and all questioned ballots cast in the
election at issue, regardless of whether they were or were not specifically challenged
below.” Fischer, 741 P.2d at 220.
27
Carr v. Thomas, 586 P.2d 622, 626 (Alaska 1978).
28
Id. (quoting Sanchez v. Bravo, 251 S.W.2d 935, 938 (Tex. Civ. App.
1952)).
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omission shall render it void.[29]
“Courts are reluctant to permit a wholesale disenfranchisement of qualified electors
through no fault of their own.”30
1. Double voting in Shungnak
Alaska Statute 15.25.060(b) provides, “A voter may vote only one primary
election ballot.” It is undisputed that all voters in Shungnak received and cast both the
ADL and the Republican ballots. This was an error by Shungnak election officials.
Nageak argues that we should not count any of the 51 votes from Shungnak, or
alternatively, that we should proportionately reduce the number of Shungnak votes as the
superior court did in the election contest. We conclude that challenges to elections based
on election official error that go beyond the facial validity of the votes cast may not be
brought under Alaska’s recount statute and therefore decline to discard the Shungnak
votes on this basis.
Two distinct statutes allow for challenges to Alaskan elections. Alaska
Statute 15.20.510 allows for a candidate to appeal a recount determination of the
Division to this court to determine whether the votes were properly counted. A recount
appeal covers “what ballots, parts of ballots, or marks for candidates on ballots are valid,
and to which candidate . . . the vote should be attributed.”31 This is necessarily a wide-
ranging inquiry, but “[t]he concept of malconduct does not enter into the question, except
insofar as particular acts or shortcomings of election officials may have resulted in the
29
Finkelstein, 774 P.2d at 790 (quoting Willis, 600 P.2d at 1083 n.9).
30
Carr, 586 P.2d at 626.
31
AS 15.20.510.
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improper counting or rejecting of votes.”32 Alaska Statute 15.20.540 covers issues of
“malconduct, fraud, or corruption on the part of an election official sufficient to change
the result of the election.”33
“It is clear from the existence of the two statutes that an election contest and
a recount appeal are distinct proceedings.”34 Election contest complaints can include
corrupt practices by non-election officials,35 but the vast majority of election contest case
law concerns errors by election officials.36 Errors by election officials, like the double
voting in Shungnak, should be considered as election contest issues, not as recount
issues. Allowing votes to be discarded in a recount appeal solely for errors of election
officials would largely merge these two distinct statutes and eliminate the need to file
election contest complaints. Challenges to the actions of election officials that go beyond
the facial validity of the votes cast should be brought under the election contest statute,
and challenges to the counting of votes should be brought under the recount appeal
statute.
Our case law is largely consistent with this division. Our cases reflect that
voters who are qualified to vote and who cast timely ballots should not have their votes
32
Willis, 600 P.2d at 1081.
33
AS 15.20.540(1).
34
Willis, 600 P.2d at 1081; see also Miller v. Treadwell, 245 P.3d 867, 874-75
(Alaska 2010).
35
See AS 15.20.540(3); Dansereau v. Ulmer, 903 P.2d 555, 567-71 (Alaska
1995).
36
See D eNardo v. Municipality of Anchorage, 105 P.3d 136, 140-43 (Alaska
2005); Dansereau, 903 P.2d at 560-66, 571-73; Hammond v. Hickel, 588 P.2d 256
(Alaska 1978); Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972); Turkington v. City of
Kachemak, 380 P.2d 593 (Alaska 1963).
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discounted under the recount statute because of improper conduct of election officials.
We concluded that votes should be counted when voters were not registered to vote
because the registrars failed to send the registration applications to the Division in Willis
v. Thomas37 and when a confusing registration card caused a voter to accidentally check
a box canceling his registration in Fischer v. Stout.38
The outlier in our case law on this distinction is Finkelstein v. Stout, a case
that involved a recount appeal of the 1988 general election for a state representative.39
A statute required that an absentee-ballot voter sign a voter’s certificate on the ballot’s
envelope and that two people witness the voter’s signature.40 The instructions that the
Division gave to absentee ballot voters, however, suggested that all that was required
was that the two witnesses witness that the ballots had been signed.41 Thirty-two voters
submitted absentee ballots that had two witness signatures with two different dates,42
meaning the acts of signing were not witnessed simultaneously by two people.43 We held
that the requirement that two witnesses witness an absentee ballot voter sign the voter’s
certificate on the envelope was “of a character to affect an obstruction to the free and
intelligent casting of the vote . . . or to . . . affect an essential element of the election” and
37
600 P.2d at 1087.
38
741 P.2d 217, 224 (Alaska 1987).
39
774 P.2d 786, 787 (Alaska 1989).
40
Id. at 789-90.
41
Id. at 793 (Rabinowitz, J., dissenting).
42
Id. at 788 (majority opinion).
43
Id. at 790.
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ruled that these votes should not be counted.44 But as in Fischer and Willis, recount
appeals in which we declined to discard votes based on election official error, this error
in Finkelstein was also “solely on the part of election officials.”45 We now believe the
claim in Finkelstein should have been argued and decided in an election contest case and
not a recount appeal. Accordingly, we disavow this aspect of Finkelstein. Future
election challengers should bring only an election contest case if they are alleging only
“malconduct, fraud, or corruption on the part of an election official.”46
2. Questioned ballots in Kivalina
It is undisputed that seven voters in Kivalina insisted on casting both the
ADL and Republican ballots. Election officials in Kivalina required each voter to cast
one in-person ballot and one questioned ballot. Of these seven questioned ballots, five
were Republican ballots and two were ADL ballots, with the latter producing one vote
for each candidate. The Director initially did not count these questioned ballots, but in
the recount the Director decided to count them.47 This was error based on the statutory
44
Id. at 791 (alteration in original).
45
Id. at 794 (Rabinowitz, J., dissenting) (quoting Fischer v. Stout, 741 P.2d
217, 225 (Alaska 1987)).
46
AS 15.20.540(1).
47
After the Director initially decided not count the questioned ballots, Nageak
challenged this decision. The Division argues that Nageak cannot now argue the ballots
should not have been counted after arguing the opposite during the recount stage. The
Division does not cite any authority for this position, and we have previously stated that
our obligation under AS 15.20.510 “must extend to a review of all ballots questioned on
any basis. . . . regardless of whether they were or were not specifically challenged
below.” Fischer, 741 P.2d at 220.
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requirement that each voter cast only one primary ballot.48 A challenge based on this
error can properly be brought under the recount statute as the error at issue goes not to
malconduct on the part of Kivalina election officials, who acted properly, but rather to
whether the votes were properly counted.49
In justifying her decision, the Director said that it was impossible to know
which ballot voters intended as their first choice. We are not convinced by this
explanation. Casting an in-person ballot and casting a questioned ballot are substantially
different procedures. An in-person ballot is cast through the normal process of filling
out a ballot and placing it in a ballot box (or using a touchscreen device). A questioned
ballot is placed in an envelope and set aside; voters sign a questioned ballot register. We
hold that a person who casts one in-person and one questioned ballot can be presumed
to have intended the in-person ballot to be the first choice ballot if only one is to count.
Nor are we convinced by Nageak’s argument that these seven voters chose
to break the law and that their votes should not be counted as a result. On the record
before us, there is no evidence suggesting the voters chose to break the law; it appears
they merely misunderstood the applicable law and elected to cast questioned ballots. All
of Kivalina’s in-person votes should be counted, but the two relevant questioned ballots
should not be.50 Since these two ballots were counted, we order the Director to subtract
one vote from the vote total of each candidate.
3. Special needs ballots in Buckland
48
AS 15.25.060(b).
49
See Willis v. Thomas, 600 P.2d 1079, 1081 (Alaska 1979).
50
We do not disturb the vote totals in the Republican primary. The Division
did not conduct a recount of the Republican ballots, and no recount appeal from that
primary is before us. Further, the Director did not count the Kivalina questioned ballots
in her initial vote tally, only deciding to count them when recounting the ADL ballots.
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Nageak argues that election officials erred in serving as election
representatives for 12 special needs voters in Buckland. Because Nageak alleges
improper conduct on the part of election officials and not improper counting of votes we
consider this challenge as an election contest.
4. Summary
The alleged errors in Shungnak and Buckland were “solely on the part of
election officials.”51 They therefore are properly the subject of an election contest and
not a recount appeal. Because the Director properly counted the ballots of voters in
Shungnak and special-needs voters in Buckland in the recount, we affirm the Director’s
recount decisions in Shungnak and Buckland. It was error to count the two questioned
ballots in Kivalina. We therefore order the Director to subtract one vote from each
candidate in Kivalina.
B. Election Contest
Alaska Statute 15.20.540 allows “[a] defeated candidate or 10 qualified
voters” to contest an election on grounds that include “malconduct . . . on the part of an
election official sufficient to change the result of the election.” We first consider whether
the errors Nageak alleges constitute malconduct and then whether the malconduct was
sufficient to change the result of the election.
1. Malconduct
Alaska Statute 15.20.540 “parallels the ‘directory’ view that statutes
prescribing election procedures and ballot forms are directory and that they therefore
establish a desirable rather than mandatory norm.”52 Thus, parties contesting the election
outcome must “show more than a lack of total and exact compliance with the
51
Fischer, 741 P.2d at, 223-24 (quoting Willis, 600 P.2d at 1087).
52
Boucher v. Bomhoff, 495 P.2d 77, 80 (Alaska 1972).
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constitutionally and statutorily prescribed form of ballot” and “ha[ve] the dual burden
of showing a significant deviation from the prescribed form and that such departure was
of a magnitude sufficient to change the result of the . . . election.”53
In Hammond v. Hickel we explained that “[i]f a bias has been introduced
into the vote, . . . ‘malconduct’ exists if the bias can be shown to be the result of a
significant deviation from lawfully prescribed norms.”54 “Significant deviations which
impact randomly on voter behavior will amount to malconduct if the significant
deviations from prescribed norms by election officials are imbued with scienter, a
knowing noncompliance with the law or a reckless indifference to the norms established
by law. Thus, evidence of an election official’s good faith may preclude a finding of
malconduct in certain circumstances.”55
a. Double voting in Shungnak
As explained above, election officials in Shungnak allowed each voter to
cast both the Republican and ADL ballots in contravention of clear statutory language.
The superior court determined that this was a significant deviation from lawfully
prescribed norms. On appeal, the Division argues that providing both ballots was not a
significant deviation because every voter who voted in the Democratic primary was
eligible to do so and because no voter voted for more than one candidate in the House
District 40 race. We disagree. Voters who would have chosen the Republican ballot
should not have been allowed to vote in the Democratic primary.56 The converse is true
53
Id.
54
588 P.2d 256, 258-59 (Alaska 1978).
55
Id. at 259 (footnote omitted).
56
See AS 15.25.060(b).
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for voters who would have chosen the ADL ballot.57 But Shungnak voters were allowed
to cast both ballots, while voters outside of Shungnak were not, giving Shungnak voters
a slightly greater say in the election.58 Allowing voters to cast two ballots was a
significant deviation from lawfully prescribed norms.
The superior court found that “election officials in Shungnak acted in
reckless disregard of the requirements of law.” It explained that “[j]udging purely on the
basis of their actions,” elections officials “did not participate in any advance training
offered by the Division for the 2016 election; they did not review the materials sent to
them; they did not review and follow the instructions on the ballot choice poster and
placards sent to them; and they knowingly gave every voter two ballots.”
The Division argues that “[t]he record in fact contains no evidence about
whether the poll workers reviewed the materials” and that “Nageak failed to present any
evidence at all about the motives of the Shungnak poll workers.” The Division notes that
poll workers are local residents hired for a brief amount of time and tasked with
numerous responsibilities. In this context, the Division argues, the Shungnak election
officials’ error should be viewed as “an honest mistake” that constituted “at worst,
negligence.”
“We review a trial court’s findings of fact for clear error,” which “exists
when ‘our review of the record leaves us with the definite and firm conviction that the
57
See id.
58
See Bush v. Gore, 531 U.S. 98, 105 (2000) (“It must be remembered that
‘the right of suffrage can be denied by a debasement or dilution of the weight of a
citizen’s vote just as effectively as by wholly prohibiting the free exercise of the
franchise.’ ” (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964))); see also id. at
104-10.
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superior court has made a mistake.’ ”59 The superior court’s finding was based on
uncontested facts or reasonable inferences from those facts. The court did not clearly err
in finding that election officials in Shungnak acted with “reckless disregard to the
requirements of law.” We therefore affirm the superior court’s finding that the errors of
Shungnak election officials constituted malconduct.60
59
Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508
(Alaska 2015) (quoting Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)).
60
The court also found that the election officials’ actions constituted bias
“because they occurred in a precinct that lopsidedly favored Mr. Westlake.” This was
error. Bias exists at the malconduct stage when conduct of election officials influences
voters to vote a certain way. See Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972)
(concluding that the addition of misleading language influenced voters to vote a certain
way and constituted malconduct). There is no evidence that election officials in
Shungnak influenced voters to vote for any particular candidate. The effect of election
officials’ conduct on the outcome of an election goes to whether any malconduct was
sufficient to change the outcome of the election and not to whether there was
malconduct. See Fischer v. Stout, 741 P.2d 217, 226 (Alaska 1987) (discussing the
method for “determin[ing] the effect of any bias that affected individual votes in a
random fashion”).
The court also found that “[t]he actions of the election officials in Shungnak
in issuing every voter both ballots violated clearly established constitutional rights as
well as the requirements of statutory law” and that “[g]iven the constitutional dimensions
of these actions and the scale on which they occurred, . . . [the actions] constitute[d]
malconduct.” We have never held that a deviation was significant enough from the norm
to constitute malconduct absent scienter or bias, but we also have not foreclosed the
possibility of demonstrating malconduct by showing good faith maladministration. In
Hammond we said that “evidence of an election official’s good faith may preclude a
finding of malconduct under certain circumstances” and that “[i]n common usage,
malconduct is defined as: ‘Ill conduct, especially dishonest conduct, maladministration,
or, as applied to officers, official misconduct.’ ” Hammond, 588 P.2d at 259 & n.3
(emphasis added) (quoting Malconduct, BLACK ’S LAW D ICTIONARY (rev. 4th ed. 1968)).
In determining whether there was a “corrupt practice” under the election contest statute,
AS 15.20.540(3), we have asked whether “the purpose of [a] statute has been satisfied.”
(continued...)
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b. Questioned ballots in Kivalina
The superior court ruled the Director erred in counting the questioned
ballots of voters in Kivalina who cast two ballots, and the court ordered one vote be
subtracted from each candidate. While we agree that the Director should not have
counted the questioned ballots, we do not agree that the superior court should have
altered the vote total under the election contest statute. Election officials in Kivalina
made a reasonable decision as to how to handle voters who wished to cast both ballots.
Nageak points to no statute that suggests election officials should have acted differently,
let alone that their conduct was a significant deviation from lawfully prescribed norms.
Indeed, he concedes that the election officials did not err. The superior court’s opinion
focused on the Director’s decision to count these votes in the recount. But this question
addresses solely which votes should be counted and does not involve allegations of
election official malconduct. It therefore is a question for a recount appeal, in which this
court has direct appellate jurisdiction from the Division, and not for an election contest
in superior court.61 Further, the decision of neither the election officials nor the Director
60
(...continued)
Dansereau v. Ulmer, 903 P.2d 555, 568 (Alaska 1995). And under the recount appeal
statute we ask whether a statutory violation is “of a character to affect an obstruction to
the free and intelligent casting of the vote or the ascertainment of the result, or. . . the
provisions affect an essential element of the election.” Carr v. Thomas, 586 P.2d 622,
626 (Alaska 1978) (quoting Rich v. Walker, 374 S.W.2d 476, 478 (Ark. 1964)); see also
Boucher, 495 P.2d at 80 (noting that the malconduct inquiry “parallels the ‘directory’
view that statutes prescribing election procedures and ballot forms are directory and that
they therefore establish a desirable rather than mandatory norm”). We need not decide
here whether the error in Shungnak would have constituted malconduct absent the
finding of recklessness.
61
See Willis v. Thomas, 600 P.2d 1079, 1081-82 (Alaska 1979) (holding that
questions involving which ballots to count were recount appeal questions and not
(continued...)
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could be sufficient to change the result of the election: each candidate received one vote
in the questioned ballots from Kivalina.
We disagree with the superior court’s choice to treat the questioned ballots
in Kivalina as an election contest question. But we affirm the court’s decision on the
alternative ground discussed above in our recount appeal analysis: the Director erred in
counting the two questioned ballots.
c. Special needs ballots in Buckland
It is undisputed that election officials acted as election representatives for
12 special needs voters in Buckland. Nageak argues that this practice violates the statute
that authorizes special needs voting. That statute provides that a voter who is unable to
go to a polling place because of a disability “may, through a representative, request a
special needs ballot from” election officials.62 “The representative shall deliver the
special needs ballot and other voting materials to the voter as soon as practicable,”63
witness the voter placing the completed ballot into the envelope (after the voter has
completed the ballot privately), and then “deliver the ballot and voter certificate to an
election official not later than 8:00 p.m. Alaska time on election day.”64 Nageak argues
that this system of voting requires three separate people — an election official, a
representative, and a voter — and that election officials may not serve as representatives.
We disagree.
Nowhere in the statute does it say that the election official and the
61
(...continued)
election contest questions).
62
AS 15.20.072(a)-(b).
63
AS 15.20.072(d).
64
AS 15.20.072(e).
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representative may not be the same person. This absence is striking given that the statute
contains a list of other people who may not serve as representatives.65 Nor does the
purpose of the act require that the election official and the representative be two different
persons. The obvious purpose of this statute is to facilitate voting by persons who have
special needs. The success of the arrangement in Buckland — 12 disabled voters, 11 of
whom were 64 years of age or older — suggests that election officials serving as
representatives may be an efficient practice in rural villages. We see nothing in the
statute that prohibits this. We also cannot agree with Nageak’s argument that this
practice “risks the integrity of the ballot process”; if anything, one fewer person in the
process should make the ballot more, not less, secure.
Because we hold that an election official may also serve as a representative,
the conduct of election officials in Buckland was not a significant deviation from
lawfully prescribed norms.66
d. Alleged cumulative malconduct
Nageak alleges numerous other actions by election officials that he argues
constitute cumulative malconduct.67 We agree with the superior court that no cumulative
65
AS 15.20.072(g) (“The voter’s employer, an agent of the voter’s employer,
or an officer or agent of the voter’s union may not act as a representative for the voter.
A candidate for office at an election may not act as a representative for a voter in the
election.”).
66
Nageak also argues that election officials failed to record the date and time
the special needs ballots were returned to the precinct. But he does not identify any
statute or regulation that requires this information be recorded.
67
Nageak alleges that there were delays in returning election materials, that
Browerville election officials required Republicans seeking to vote the ADL ballot to
cast a questioned ballot, that a felon ineligible to vote voted, and that voters and election
officials in multiple precincts did not complete or sign required paperwork. He also
(continued...)
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malconduct occurred. In Hammond we theorized:
It may be that, in rare circumstances, an election will
be so permeated with numerous serious violations of law, not
individually amounting to malconduct, that substantial doubt
will be cast on the outcome of the vote. Under such
circumstances, cumulation of irregularities may be proper and
will support a finding of malconduct.[68]
But we have never been presented with a case where we found a cumulation of
irregularities that constituted malconduct. And the Minnesota case we cited for the
proposition that cumulative malconduct may cast doubt on the outcome of the election
contained facts far worse than what allegedly occurred here.69 We explained in
Hammond that Alaska elections present “[u]nique problems . . . in the vast area
encompassed as well as the varied cultural backgrounds and primary languages of
voters.”70 Nowhere is this more true than in House District 40. “Under these
circumstances minor irregularities and other good faith errors and omissions may be
anticipated, although we do not condone any such departures from lawful
67
(...continued)
alleges that election officials did not request identification from voters, destroyed or
failed to turn in ballot stubs, telephoned inaccurate results on election night, did not
properly tally votes, incorrectly marked spoiled ballots, failed to sign certificates of ballot
counts, and that precincts had fewer than the statutorily required number of election
officials.
68
Hammond v. Hickel, 588 P.2d 256, 259 (Alaska 1978) (citing In re Contest
of Election of Vetsch, 71 N.W.2d at 652 (Minn. 1955)).
69
In In re Contest of Election of Vetsch more votes were cast than registered
voters in the precinct, many ballots were unaccounted for, the leader of the election
board favored the winning candidate, and some of the people counting the votes were
statutorily barred due to conflicts of interest. 71 N.W.2d at 655-56.
70
Hammond, 588 P.2d at 259.
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requirements.”71 Nageak has not shown sufficient facts to establish cumulative
malconduct.
2. Sufficient to change the result of the election
Because we affirm that malconduct occurred in Shungnak, we must now
decide whether Nageak has shown that this malconduct was “sufficient to change the
result of the election.”72 We conclude that he has not.73
71
Id.
72
AS 15.20.540(1).
73
The dissent states that we have “subtly change[d] the standard we have used
in past cases to assess whether malconduct affected the election, deciding that Nageak
was required to show not just that the malconduct could have changed the result . . . but
that it would have changed the result.” The dissent argues that “[t]his standard is too
high” because “even a probability less than 50% should be adequate to meet the purpose
of an election contest.” In response w e note that our opinions have fairly
interchangeably asked both whether the malconduct could have changed the result and
whether it would have changed the result. See, e.g., Hammond, 588 P.2d at, 260 (Alaska
1978) (“The method used to determine if the malconduct could have changed the result
of the election will depend upon whether the malconduct injected a bias into the vote.
If the bias has tended to favor one candidate over another and the number of votes
affected by the malconduct can be ascertained with precision, all such votes will be
awarded to the disfavored candidate to determine if the result of the election would be
changed. . . . Finally, if the malconduct has a random impact on votes and those votes
cannot be precisely identified, we hold that the contaminated votes must be deducted
from the vote totals of each candidate in proportion to the votes received by each
candidate in the precinct or district where the contaminated votes were cast. . . . The
invalid votes will be deducted in this pro rata fashion to determine if the malconduct
could have affected the result of the election.” (emphasis added)); Fischer v. Stout, 741
P.2d 217, 226 (Alaska 1987) (“In Hammond, we discussed the proportionate reduction
rule as the only method to properly determine the effect of any bias that affected
individual votes in a random fashion. . . . [T]he technique was to be used only as an
analytical tool to aid in the determination of whether the contaminated ballot actually
would [a]ffect the result of the election.” (emphasis added) (citing Hammond, 588 P.2d
(continued...)
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The 2016 Republican primary election in House District 40 was a
comparatively uncontroversial primary election; by uncontroversial, we mean that the
races on that ballot were not close or heated. On the Republican ballot, incumbent
Republican U.S. Senator Lisa Murkowski was running against three challengers, whom
she beat by significant margins.74 Incumbent Republican U.S. Representative Don
Young was also running against three challengers, and he also beat them by significant
(...continued)
at 260)); Finkelstein v. Stout, 774 P.2d 786, 793 (Alaska 1989) (“If application of the
proportional reduction formula does not change the provisional result . . . , the Director
should certify the prevailing candidate forthwith. . . . If application of the proportional
reduction formula would change the provisional result . . . , a new election should be held
promptly.” (emphasis added)). To the extent this leaves ambiguity, we decline to resolve
it now other than by reaffirming the principle that “every reasonable presumption will
be indulged in favor of the validity of an election.” Dansereau v. Ulmer, 903 P.2d 555,
559 (Alaska 1995) (quoting Turkington v. City of Kachemak, 380 P.2d 593, 595 (Alaska
1963)).
We have described ordering a new election as an “extreme remedy.”
Hammond, 588 P.2d at 259. This is at least partly because a second election is usually
a poor approximation of the first election: among other concerns, voter turnout is likely
to differ significantly, and there is no guarantee that the second election will be any more
problem-free than the first. See Huggins v. Superior Court, 788 P.2d 81, 84 (Ariz.
1990). This case provides a good example of some of the issues with holding a new
election. The problem in Shungnak was that all voters were allowed to vote the ADL
ballot, rather than being forced to choose between the ADL and Republican ballots. But
a second election would have no Republican ballot. Once again, all voters would be
allowed to vote the ADL ballot because there would be no Republican option.
We reaffirm that we will order a new election only if an election challenger
has shown malconduct sufficient to change the result and only after indulging every
reasonable presumption in favor of the validity of the election. Nageak has not made the
necessary showing.
74
See D IV . OF ELECTIONS , 2016 PRIMARY E LECTION : ELECTION SUMMARY
REPORT 1 (2016), http://www.elections.alaska.gov/results/16PRIM/.
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margins.75
Significantly, there were no state representative candidates running on the
Republican ballot for House District 40.76 Only the ADL ballot had candidates running
for state representative — incumbent Democratic state representative Nageak and
Democratic challenger Westlake. Nageak, though a registered Democrat, caucused with
the Republican House caucus and was supported by the Alaska Republican party.
Westlake, also a registered Democrat, was supported by the Democratic Party. The
significance of these facts is that, had the Shungnak election officials not provided both
ADL and Republican ballots to all Shungnak voters, a voter in Shungnak who wanted
to vote for a “Republican” state house candidate (that is, Nageak) had to choose the ADL
ballot. A voter who chose the Republican ballot would be able to vote in the relatively
noncompetitive national congressional races on the Republican ballot but would forfeit
the opportunity to vote in the contested local state house race between a “Republican”
and a Democratic candidate.
Because all 50 in-person voters in Shungnak were given both ballots, all
50 voters were able to vote for a state house candidate. Nageak received 3 votes and
Westlake received 47. Although all 50 in-person voters voted the ADL ballot because
of election official error, as we explain below it is likely that almost all of these voters
still would have voted the ADL ballot if forced to choose because this is how voters in
Shungnak voted in comparable elections. Since Westlake won by 8 votes overall in
House District 40, the error of election officials in Shungnak was harmless unless at least
75
See id.
76
There were no state senate candidates for Senate District T on the
Republican ballot either.
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8 of the 47 voters who voted for Westlake would have chosen the Republican ballot.77
The superior court adopted the method proposed by Nageak’s expert,
Ruedrich, who used the average number of voters who chose the Republican ballot in
2008, 2010, 2012, and 2014 to approximate the number of voters who would have
chosen the Republican ballot in 2016 if forced to choose.78 But this method fails to take
into account the significant differences on the ballots in different years’ elections,
differences Ruedrich acknowledged. As discussed above, the 2016 Republican primary
election in House District 40 was comparatively uncontroversial. This had not been the
case in other recent primary elections. The 2008 Republican primary election included
a very close, hotly contested race between Republican then-Lieutenant Governor Sean
Parnell and Republican incumbent Don Young for U.S. Representative; Young won
45.47% to Parnell’s 45.19%.79 The 2010 Republican primary included a high-profile
contest between Republican challenger Joe Miller and Republican incumbent
77
Even if eight Shungnak voters would have chosen the Republican ballot if
forced to choose, it is not clear that only Westlake’s vote total would be affected. The
three Shungnak voters who voted for Nageak may have done so because he caucused
with Republicans in the House and was considered the “Republican” candidate. If they
would have chosen the Republican ballot if forced to choose then Nageak would have
to make up the loss of those three votes as well as gain an additional eight net votes from
Shungnak Westlake voters who might have chosen the Republican ballot. See Talbott
v. Thompson, 182 N.E. 784, 789 (Ill. 1932) and Leach v. Johnson, 313 N.E.2d 636, 640­
42 (Ill. App. 1974) for cases using party affiliation to determine the outcome of elections
when over voting has occurred.
78
The 2008 primary election was the first election to have the choice between
an ADL and Republican ballot.
79
See D IV . OF ELECTIONS , 2008 PRIMARY E LECTION : ELECTION SUMMARY
REPORT 1 (2008), http://www.elections.alaska.gov/results/08PRIM/data/results.pdf.
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Lisa Murkowski for U.S. Senator; Miller won 50.91% to Murkowski’s 49.09%.80 The
2010 Republican primary also included contested races for Governor and Lieutenant
Governor.81 And the 2014 primary election had a competitive race on the Republican
ballot for U.S. Senator.82 The 2014 ADL ballot also had Westlake challenging Nageak
in the Democratic primary. Only in 2012 was the Republican primary essentially
uncontroversial in the same way as 2016 at the same time as there was a competitive
Democratic primary election for House District 40.83 Likely because of these
differences, a significantly higher percentage of voters in Shungnak and the rest of House
District 40 chose the ADL ballot in 2012 than in 2008 and 2010; and a slightly higher
percentage chose the ADL ballot in 2012 than 2014, as the following table shows.84
80
See D IV . OF ELECTIONS , 2010 PRIMARY ELECTION : ELECTION SUMMARY
REPORT 1 (2010), http://www.elections.alaska.gov/results/10PRIM/data/results.pdf.
81
See id.
82
See D IV . OF ELECTIONS , 2014 PRIMARY ELECTION : ELECTION SUMMARY
REPORT 1 (2014), http://www.elections.alaska.gov/results/14PRIM/data/results.pdf.
83
See D IV . OF ELECTIONS , 2012 PRIMARY ELECTION : ELECTION SUMMARY
REPORT 1, 3, 9 (2012), http://www.elections.alaska.gov/results/12PRIM/data/results.pdf.
84
As discussed above, the Division does not record the number of ADL
versus R ballots cast in each election. See supra note 17. In the following table, we use
the method relied on by the parties: the number of votes cast in the race with the most
votes on each ballot (ADL or R). This method provides consistency across both election
years and geographic scales (Shungnak, House District 40, and statewide). In addition,
when calculating the percentage of ADL ballots, we believe the proper denominator is
the total number of ADL and Republican ballots cast in a given election, excluding
separate ballots for initiatives. We note that this differs from the method used by
Heckendorn, who relied on the total number of ballots cast. We disagree with
Heckendorn’s method because the relevant comparison for our purposes is between ADL
and Republican ballots (which are mutually exclusive), rather than separate initiative
(continued...)
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Shungnak HD 40 excluding Shungnak
Year ADL R % ADL ADL R % ADL
2008 38 15 71.7% 1762 904 66.1%
2010 32 18 64.0% 1049 816 56.2%
2012 53 7 88.3% 1926 417 82.2%
2014 85 56 11 83.6% 2068 751 73.4%
2016 — — — 1590 86 426 78.9%
We believe that the qualitative comparative differences in the nature of the
primary elections over a period of years are legally significant factors and that the legal
methodology for determining whether the malconduct was sufficient to change the result
of the election must account for these important factors. Because simple averaging of
the number of voters who chose the Republican ballot in past elections does not take into
account these legally significant factors, it was legal error for the superior court to adopt
Ruedrich’s method to determine whether malconduct was sufficient to change the
outcome of the election.87
84
(...continued)
ballots (which everyone may cast).
85
The boundary of House District 40 shifted for the 2014 election. Compare
Appendix p. 3, with A LASKA REDISTRICTING BD ., A MENDED PROCLAMATION H OUSE
DISTRICTS: HOUSE DISTRICT 40 (2011), http://www.elections.alaska.gov/doc/maps/2011­
districts/HD40.pdf (district for 2012 election).
86
This total reflects our subtraction of one vote from each candidate in
Kivalina.
87
We do not disturb any of the superior court’s factual findings with respect
to its sufficiency analysis. We accept the court’s findings as to what occurred in
Shungnak and the court’s assessment of the credibility of the two expert witnesses. But
(continued...)
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Westlake’s expert, Heckendorn, did consider these qualitative differences.
He compared the qualitatively similar 2012 and 2016 elections and used the percentage
of voters in Shungnak who chose the ADL ballot in 2012 as an estimate of the number
of voters who would have chosen the ADL ballot in 2016 if forced to choose between
the ADL and Republican ballots. To characterize Heckendorn’s methodology in familiar
terms, comparing the 2012 and 2016 ballots compared apples to apples; but when one
adds the 2008, 2010, and 2014 ballots into the analysis one ends up comparing apples
87
(...continued)
the correct method or formula for calculations is generally a question of law that we
review de novo. See, e.g., Sherrill v. Sherrill, 373 P.3d 486, 490 (Alaska 2016) (“We
review de novo child support issues that involve ‘. . . determining the correct method for
calculating child support.’ ” (quoting Wells v. Barile, 358 P.3d 583, 587-88 (Alaska
2015))); Kollander v. Kollander, 322 P.3d 897, 903 (Alaska 2014) (“Whether the court
applied the proper legal analysis to calculate attorney’s fees is a question of law we
review de novo.” (quoting Weimer v. Cont’l Car & Truck, LLC, 237 P.3d 610, 613
(Alaska 2010))); Dixon v. Blackwell, 298 P.3d 185, 188 (Alaska 2013) (“Calculation of
the value of a verdict to determine if it exceeded an offer of judgment presents questions
of law, which we review de novo.” (quoting Power Constructors, Inc. v. Taylor &
Hintze, 960 P.2d 20, 34 (Alaska 1998))); Carlson v. State, Commercial Fisheries Entry
Comm’n, 919 P.2d 1337, 1339 (Alaska 1996) (“The issue of whether the superior court
erred in adopting the pro rata formula to calculate the contribution to commercial
fisheries management made by residents is also an issue of law which we review de
novo.”).
Similarly, we have explained that the Hammond formula sets as a matter
of law the proper method for determining sufficiency under AS 15.20.540 when the
number of improper votes is known. Hammond v. Hickel, 588 P.2d 256, 258 (Alaska
1978) (“This ultimate legal conclusion is necessarily predicated on two lesser, but critical
conclusions of law: (1) a finding of malconduct on behalf of election officials and (2)
a finding that such malconduct was sufficient to change the result of the election.”); id.
at 260 (“We believe that more concrete standards must be applied in order to determine
if votes affected by malconduct are sufficient in number to change the result of the
election.”). We therefore review de novo the method “applied in order to determine if
[the] votes affected by malconduct [were] sufficient in number to change the result of the
election.” Id.
-36- 7286
to apples and oranges, a legally invalid comparison. The Division agrees with
Heckendorn’s method of analysis and so do we.
We do not hold that Heckendorn’s method is the only or best method for
determining how many voters would have chosen the ADL and Republican ballots if
forced to choose. But his method at least focuses on legally relevant information and
disregards factors that would bias the outcome. Because the 2012 primary election and
the 2016 primary election were qualitatively similar elections,88 we are assured that the
comparison between these two elections is a legally valid apples-to-apples comparison.
Heckendorn’s method appropriately considered the legally significant factors that
Ruedrich’s method failed to consider.
Using the percentage of Shungnak voters who chose the ADL ballot in
2012 to determine the percentage of voters who likely would have chosen the ADL ballot
in 2016 results in the conclusion that 5.83 voters would have chosen the Republican
ballot. Even rounding up to 6 votes and subtracting all 6 from Westlake’s 47 does not
give Nageak the net gain of 8 votes he needed to change the outcome of the election.
It was Nageak’s burden to show that the malconduct in Shungnak was
sufficient to change the result of the election,89 and “every reasonable presumption will
be indulged in favor of the validity of an election.”90 We have concluded that Nageak’s
method is legally invalid because it employs a mere average of the number of voters who
chose the Republican ballot over a number of elections including elections that were
88
The 2012 and 2016 elections were also quantitatively similar because a
similar percentage of voters in House District 40 outside Shungnak chose the ADL ballot
in 2012 and 2016, as the table shows.
89
Boucher v. Bomhoff, 495 P.2d 77, 80 (Alaska 1972).
90
Dansereau v. Ulmer, 903 P.2d 555, 559 (Alaska 1995) (quoting Turkington
v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963)).
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materially dissimilar to the 2016 election. Thus it was legal error for the superior court
to rely on and apply Nageak’s flawed methodology, and we conclude Nageak has not
met his burden of proving that the election officials’ malconduct was sufficient to change
the outcome of the election.91 We reverse the superior court’s decision on this point.92
V. CONCLUSION
It was error for the superior court to conclude that the malconduct in
91
We note that the superior court did not order a new election but instead
ordered the Director to certify Nageak as the winner based on its proportionate reduction.
But we have never proclaimed a new winner based on a proportionate reduction analysis,
and we have admonished Directors for applying proportionate reduction analyses to
change vote totals instead of submitting the question to us. Fischer, 741 P.2d at 225-26.
Indeed, changing an election result based on a proportionate reduction in votes is
unprecedented in Alaska law and is an even more “extreme remedy” than ordering a new
election. See id. at 226 (“In Hammond, we discussed the proportionate reduction rule
as the only method to properly determine the effect of any bias that affected individual
votes in a random fashion. We did not intend, however, that the technique was to be
used to actually reduce the candidate’s official total.”); Hammond, 588 P.2d at 259
(“There were no such numerous serious violations as to permeate the entire election
process, so as to require the extreme remedy of a new election.”).
92
Nageak argues that the double voting in Shungnak caused some voters to
have more power than others and thus violated constitutional requirements: “[T]he right
of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote
just as effectively as by wholly prohibiting the free exercise of the franchise.” Bush v.
Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)).
But assuming without deciding that constitutional violations did occur, these violations
did not change the result of the election and were therefore harmless. Westlake argues
that discounting votes from Shungnak would disenfranchise Alaska Native voters and
violate the Voting Rights Act, 52 U.S.C. §§ 10101, 10301 (2012). According to the
2010 census, Shungnak is 94.3% American Indian or Alaska Native. U.S. Census
Bureau, Race and Hispanic or Latino Origin, A MERICAN F ACT F INDER ,
https://factfinder.census.gov/bkmk/table/1.0/en/DEC/
10_SF1/QTP3/1600000US0270100 (last visited July 12, 2018). Because we do not
discount votes from Shungnak, we do not consider the implications of the Voting Rights
Act.
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Shungnak was sufficient to change the result of the election. We therefore REVERSE
the superior court’s order proportionately reducing the vote total in Shungnak. We agree
with the Director’s certification of the vote in Shungnak. We AFFIRM the Director’s
certification with respect to Shungnak.
It was error for the Director to count the two questioned ballots in Kivalina.
We REVERSE this decision. It was also error for the superior court to order that those
votes be deducted under the election contest statute. But the result of that order — not
counting the questioned ballots — is correct. We therefore AFFIRM the superior court’s
order reducing one vote from each candidate in Kivalina.
We AFFIRM the decisions of both the Director and the superior court on
all other issues. The Director shall certify Westlake as the winner of the election with
824 votes to Nageak’s 816 votes.
-39- 7286
WINFREE, Justice, dissenting in part.
I respectfully dissent from that part of the court’s opinion reversing the trial
court’s determination that the election officials’ malconduct could have changed the
election result. The court subtly changes the standard used in past cases to assess
whether malconduct affected the election, deciding that Nageak was required to show not
just that the malconduct could have changed the result — the standard applied in other
cases1 — but that it would have changed the result. Additionally the court decides as a
matter of law that the expert opinion the trial court found more credible and relied on in
making its findings actually was less credible than the expert opinion the trial court
rejected. But when an election contest decision is reviewed after a full trial, rather than,
say, a summary judgment decision,2 the findings of fact and conclusions of law were
made by a trial court with the same power to assess credibility and weigh evidence that
trial courts possess in all cases, and the same standards of review should be used and the
same deference shown to a trial court as in other cases with contested factual disputes.
Because the court seems unable or unwilling to say that the trial court’s factual findings,
including its credibility finding, were clearly erroneous, the trial court should be
affirmed, although the election should be declared void and a new election ordered.
I agree with the court that, consistent with the framework in Hammond v.
Hickel, the malconduct in Shungnak had “a random impact on votes” but the affected
votes cannot be segregated.3 Under the Hammond framework, to determine whether this
1
Hammond v. Hickel, 588 P.2d 256, 259 n.5 (Alaska 1978) (quoting
Boucher v. Bomhoff, 495 P.2d 77, 80 n.5 (Alaska 1972)).
2
Cf. id. at 258 (indicating appeal was from cross-motions for summary
judgment).
3
Id. at 260.
-40- 7286
type of malconduct could have affected the election result, “the contaminated votes must
be deducted from the vote totals of each candidate in proportion to the votes received by
each candidate in the precinct or district where the contaminated votes were cast.”4 The
difficult question facing the trial court after its finding of malconduct was how to
calculate the number of votes to be deducted from each candidate’s total to determine
whether the malconduct could have changed the election’s result.
The election in this case presented a novel situation because the malconduct
entailed distribution of two ballots, affecting two different primary elections rather than
one election with two candidates or a proposition. To know with any certainty how the
malconduct affected the ADL primary — the election Nageak was contesting — required
consideration of both the number of voters who may have chosen the ADL ballot and the
number of voters choosing the ADL ballot who may have voted for each candidate.
Prior cases have never needed to determine how many voters might have voted in a
particular election; they needed only to apply a proportional reduction to the actual
number of ballots cast.5 Because of these complications, and because the malconduct
affected all of the votes in Shungnak, a separate precinct within District 40, the trial court
was not faced with a simple math problem.
The court today frames the question on review as “whether Nageak has
shown that [the] malconduct was ‘sufficient to change the result of the election,’ ” citing
4
Id.
5
See, e.g., id. at 272-73 (setting out formula to recalculate vote totals in order
that general election can proceed); see also Finkelstein v. Stout, 774 P.2d 786, 793
(Alaska 1989) (applying proportional reduction in recount appeal); Fischer v. Stout, 741
P.2d 217, 225-26 (Alaska 1987) (rejecting recount challenge after determining that pro
rata reduction did not change election result).
-41- 7286
AS 15.20.540(1).6 The court discusses the likelihood “that almost all of the[] voters still
would have voted the ADL ballot” and posits that “the error of election officials in
Shungnak was harmless unless at least 8 of the 47 voters who voted for Westlake would
have chosen the Republican ballot.”7 Boucher v. Bomhoff interpreted AS 15.20.540 and
prior case law as placing on a party challenging an election “the burden of proving that
the alleged misconduct could have changed the result of the election.”8 The two words
— “would” and “could” — have different meanings, with “could” “indicat[ing]
possibility”9 and “would” “indicating the consequence of an imagined event or
situation.”10 In other words, by changing the standard from “could” to “would,” the
court puts a greater burden on parties bringing election contests and opens the possibility
that in future election contests the parties will have to meet something approaching a
“more likely than not” standard. This standard is too high: even a probability of less
than 50% should be adequate to meet the purpose of an election contest, “establish[ing]
doubt as to the validity of [an] election result” because of improprieties.11
Under either standard the trial court was required to determine how many
voters would have voted in the Republican primary but for the election officials’
malconduct. To assist the trial court in making necessary findings, both candidates
6
Op. at 30.
7
Op. at 32-33 (emphasis added).
8
495 P.2d at 80 n.5 (emphasis added).
9
Could, Definition 1, Oxford English Dictionaries: English, https://en.
oxforddictionaries.com/definition/could (last visited Mar. 15, 2018).
10
Would, Definition 2, Oxford English Dictionaries: English (emphasis
added), https://en.oxforddictionaries.com/definition/would (last visited Mar. 15, 2018).
11
Braun v. Denali Borough, 193 P.3d 719, 731-32 (Alaska 2008).
-42- 7286
offered expert witnesses. Randall Ruedrich — Nageak’s expert — was qualified as an
expert in “[i]rregularities in election handling” (over the State’s objection) and
“evaluation of voter turnout data in order to determine the impact of such irregularities.”
John Henry Heckendorn — Westlake’s expert — was qualified as an expert in analysis
of “voter patterns” in House District 40, evidently without objection. Neither expert
indicated he had any special training or expertise in statistics or applied mathematics.
Instead, both experts testified based on their experiences from political campaigns. The
experts offered differing analyses and conclusions, and the trial court found Ruedrich’s
“testimony more authoritative and reliable.” Based on this credibility finding, the trial
court used Ruedrich’s calculation and made a factual finding of the number of voters
who would have selected the Republican ballot without the malconduct; it then used the
Hammond framework to reduce the two candidates’ vote totals proportionately. This
method led to the conclusion that the malconduct could have changed the election result.
On appeal, the court reviews Ruedrich’s method de novo and concludes it
“does not take into account” certain factors that the court decides are “legally
significant.”12 The court does not articulate a standard of general applicability for all
election contests and gives no guidance to trial courts about what factors it might
consider “legally significant” in other primary or general elections.13 Instead, the court:
(1) holds that it was “legal error for the superior court to adopt Ruedrich’s method”;14
(2) “agrees” with “Heckendorn’s method of analysis,” even though it criticizes some
12
Op. at 35 & note 87.
13
Op. at 35.
14
Op. at 35.
-43- 7286
aspects of his calculations;15 and (3) “do[es] not hold that Heckendorn’s method is the
only or best method.”16 If there were a clearly articulated formula about how to calculate
the impact of malconduct in election contests, an expert’s deviation from that rule might
be legally erroneous. But there is no such rule, and the court does not announce one
today. The court is either reweighing the expert testimony and affording more weight
to Heckendorn than to Ruedrich, or it is conducting a trial de novo on the record and
simply rejecting what it dislikes as “legally invalid.”17 This is a clear departure from the
customary review of trial court decisions.
An expert must be qualified “by knowledge, skill, experience, training, or
education” when “scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue.”18 Trial courts are
generally accorded discretion in determining whether to admit non-scientific expert
testimony,19 and “[t]he weight to be given to expert testimony is within the province of
the trier of fact.”20 While the experts in this case may not have used detailed statistical
analyses — and, indeed, were not qualified to do so — they offered opinions in their
areas of expertise that the trial court was entitled to evaluate for credibility and weight.
15
Op. at 37.
16
Op. at 37.
17
Cf. Op. at 37.
18
Alaska R. Evid. 702(a).
19
Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
20
State v. Phillips, 470 P.2d 266, 272 (Alaska 1970).
-44- 7286
Given these liberal admissibility standard for expert testimony,21 the trial court’s decision
to accept and evaluate the expert testimony here was not an abuse of discretion. And in
light of the nature of the expert testimony the parties presented, I cannot conclude that
the trial court’s finding that Ruedrich’s opinion was “more authoritative and reliable”
was clearly erroneous. The court certainly is unable, or unwilling, to do so. It instead
conjures heretofore unknown ad hoc legal requirements invalidating Reudrich’s opinion.
The result of today’s opinion is to make election contests more difficult for
both the parties and the trial court. A showing that malconduct would affect the result
is stricter than a showing that it could affect the result. And because the court does not
set out specific guidelines for parties or trial courts to use in future election cases,
participants in those cases cannot know what new ad hoc factors this court may decide
in the future are “legally significant,” injecting a great amount of uncertainty into a
process that usually proceeds in a highly expedited fashion. I would adhere to our
precedent and our customary standard of review and would affirm the trial court’s
malconduct determination, although I would remand for a new primary election. I
respectfully dissent from that part of the court’s opinion holding otherwise.
21
Marron, 123 P.3d at 1002 (explaining “our ‘liberal admissibility standard’
for expert testimony allows any person with specialized knowledge to serve as an expert
witness . . . . [n]o specific training or formal education is required” (quoting John’s
Heating Serv. v. Lamb, 46 P.3d 1024, 1034 (Alaska 2002))).
-45- 7286
In the Supreme Court of the State of Alaska
In the Matter of the ) Supreme Court Nos. S-16462,
) S-16492, and S-16494
) (consolidated)
2016 State House District 40 )
Primary Election ) Order
)
)
) Date of Order: 10/12/16
Division of Elections Recount;
3AN-16-09015CI
Before: Stowers, Chief Justice, and Winfree, Maassen, Bolger, and Carney,
Justices
Before the court are consolidated appeals: S-16462 is an election recount appeal
from the August 16, 2016 primary election, filed by Benjamin N. Nageak; S-16492 is Lt.
Governor Byron Mallott’s appeal from the superior court’s Findings of Fact and
Conclusions of Law dated October 6, 2016 (Decision and Order) following its trial on
Mr. Nageak’s election contest action also arising from the August 16 primary; S-16494
is Dean Westlake’s appeal from the superior court’s Decision and Order in the election
contest case. This court has considered the briefs of the parties and the record from the
superior court, and conducted oral argument on October 12, 2016.
IT IS O RDERED that the superior court’s Decision and Order to the Division of
Elections to retabulate the vote total from the Shungnak precinct and certify Mr. Nageak
as the winner of the Democratic primary in House District 40 is R EVERSED . The
Division of Elections’ certification of Mr. Westlake as the winner of the House District
40 Democratic primary is R EINSTATED . The superior court’s Decision and Order is
otherwise A FFIRMED .*
*This affirmance includes the superior court’s Decision and Order concluding that
the Division of Elections Director’s determination to count seven questioned ballots in
Kivalina was erroneous. The superior court correctly ordered that the seven questioned
ballots must be disregarded; because two of the questioned ballots were on the combined
Alaska Independent-Democrat-Libertarian ballot with one vote for each candidate, the
superior court also correctly directed the Director to deduct one vote from each candidate.
Appendix Page 1 of 4 7286
In the Matter of the 2016 State House District 40 Primary Election
Supreme Court Nos. S-16462/16492/16494
Order of 10/12/16
Page Two
A written opinion explaining this court’s Order will be forthcoming.
Entered at the direction of the court.
Clerk of the Appellate Courts
/s/Marilyn May
WINFREE, Justice, concurring in part and dissenting in part.
I agree with the court that — as Mr. Nageak’s counsel conceded during oral
argument — the superior court’s order directing the Division of Elections to certify
Mr. Nageak as the winner of the Alaska Democratic Party primary election in House
District 40 was legal error and must be reversed. But in my view the superior court
correctly determined that — as to the primary election in the Shungnak precinct — the
Division of Elections committed malconduct that could have affected the election result
between Mr. Nageak and Mr. Westlake. Accordingly I would declare the election void
and direct the Division of Elections to hold a new election.
Appendix Page 2 of 4 7286
Appendix Page 3 of 4 7286
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7286