Home Politics Community Politics Court is in Session: Assembly Certifies Controversial Election

Court is in Session: Assembly Certifies Controversial Election

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The question put before the Anchorage Assembly during the special meeting Thursday night was not an enviable one, nor was it a clear one.

The election should not have been certified for fundamental democratic reasons. Heated contests were decided in an election where voting machines were suspect, ballots ran out as early as 5pm and in a majority of polling places, hundreds of voters reported voting irregularities, and a leading opponent of the most notable proposition broadcast his own involvement in election tampering across Facebook.

Former election coordinator Guadalupe Marroquin wrote an Anchorage Daily News Compass Piece over the weekend calling for a full hand count of ballots. A group of ten Anchorage voters filed for a hand count of fifteen specific precincts and an audit of the election.

This is a big deal.

There are also legitimate reasons for certification. The election had other components: three school board candidates and several propositions. Those school board members-elect cannot be seated and the bond measures cannot have funding allocated directly until certification.

Both the Election Commission and a new legal opinion at the request of Chair Ernie Hall recommended certification. The latter found a convincing argument which would sway the Assembly to vote for certification by an 8-3 margin. Its author, Tim Petumenos, compared the Assembly’s role to a de facto judge overseeing a trial where the election results played the part of the defendant – begging the question: when do the People get their day in court?

Attendees and home viewers of Thursday night’s proceedings expected an Assembly meeting. But this was a bit more like a court battle, with many members of the body enjoying their new role in a municipal judiciary. Thursday stood as a lopsided trial with the Election Commission and Tim Petumenos starring as the defense, and the prosecution played by…. Um….

Petumenos’s written opinion was an opening argument explaining why we we’re all off to court: [CLICK ME!]

When reviewing the Election Commission recommendation and any Election Contest, each Assembly Member acts individually in a manner analogous to an administrative judge or regulatory authority, bound by legal standards.

He then explained why the court needed to uphold the law and find the defendant (election) innocent of all charges:

There is a presumption of validity that attaches to an election. The party contesting the election bears the burden of establishing corruption or reckless conduct. It must be proved that claimed malconduct actually affected the outcome of the election.

As Alaska Commons has pointed out before (call it “Exhibit Ignored”), there is no codified definition of what constitutes a change in an election’s outcome. Title 28, which deals with elections, says only that an election can be contested if there is “Malconduct, fraud or corruption on the part of an election official… [or] Any corrupt practice as defined by law sufficient to change the result of the election.”

Each vote cast is a tiny outcome of an election. There is a case to be made and an ambiguity in existing code that says the large amount of people who were denied their right to vote represent a significant change in the outcome of the election.

My eyes did cartwheels outside of their sockets responding to the prosecution rebuke of this argument:

Inconvenience to voters is not sufficient [to not certify the election]…. Outright corrupt or criminal conduct which may have been aimed at affecting the outcome of an election is insufficient ground to invalidate an election unless the conduct reasonably had the potential for changing the outcome. This is true even when people may go to jail for their wrongful conduct. This is so because not only does democracy itself place a heavy premium on election finality, but those voters whose votes were properly cast and counted are entitled to be enfranchised, even when it can be shown that some voters were disenfranchised. [Emphasis mine]

Voter fraud and election tampering only result in a basis to throw out an election if the voter fraud and election tampering flip the winner and loser. If the voter fraud and election tampering take place, but are unable to corrupt an election (so that only a discountable minority of voters are disenfranchised), it’s considered part of the democratic process.

Weird becomes italicized as he explains why we should let democratic elections, hampered by the pesky detail of being fraudulent, stand:

Our system has been held up to the world as the model for democracy. See e.g., The Role of Elections in Peace Process: When and How Do They Advance Stability or Exacerbate Conflict… which compares… the United States Supreme Court ruling in Bush v. Gore, to the violence that befell Angola following a contested election. The same principles that safeguard our democracy in national elections are also the fabric of our state and local elections.

The explanation posits that the controversial 2000 presidential election, which may or may not have been rampant with corruption and cronyism, should establish precedent for all elections – not because we had a high degree of people voting, or a clean election, but simply because we didn’t start shooting each other in the streets. All is well so long as order is maintained. Mr. Petumenos would explain this concept further at Thursday’s special meeting/trial:

There is some obvious force to the idea that even one vote – even one disenfranchised voter… is one too many. But the experience of election after election is such that that election does not exist. There is no perfect election. So then where does this leave you? Our system provides for an election commission.

The Commission, Mr. Petumenos argues, is responsible for determining if there is sufficient evidence of election misconduct that would warrant the delay of certification. And the Commission finds that there is not.

At Thursday’s meeting, this assertion faced public testimony despite Chair Ernie Hall’s disallowing public comment. Election Commission Chair Gwen Mathews summarized the Commission’s findings before the body, stating that the ballot shortages were due to a mathematical error and that the Diebold voting machines were not a source of concern. The reports of broken seals, she said, were not true.

When Assemblywoman Debbie Ossiander pushed back, recalling that she had heard of at least one broken seal, Mathew said: “In our interviews [and] in the emails… we did not have any report of that.”

A surprise witness from the nonexistent prosecution rose from the crowd behind her: “That’s a lie.”

The voice belonged to Wendy Isbell, an Anchorage resident, one of the ten voters who filed for a hand count and audit. Isbell claimed she received poll worker training from Municipal Clerk Jacqueline Duke and was told to ignore broken seals. She later saw a broken seal on one of the machines, which Mathews denied.

“I reported it,” Isbell’s voice echoed in the chambers deep within the Loussac. “I reported a broken seal and obviously you threw that away.”

A tweet from Mel Green of Bent Alaska sent out during the exchange corroborated: “I personally witnessed Isbell telling an election commissioner about it. The Election Commission is lying.”

Mathews, with Isbell screaming behind her, reported to Ossiander that the claim of a broken seal was hearsay, while the person who offered the first hand account objected behind her.

In cross examination, Assemblyman Paul Honeman asked Mathews about other reports of polling places that had opened late or closed early. He asked if the Commission could confirm or deny this. The response:

“There were a couple that closed their doors for a while, but we’ve reviewed that and we had several voters that came [to report that]. There is a question, and this is perhaps a legal questions, that if someone meets you at your car and says ‘we have no more ballots. We suggest that you go to this precinct.” That is, according to the legal counsel that we received, that is not an act of disenfranchising, that is in fact enfranchising the person to go vote.” [Emphasis mine]

This was said with a straight face to a court room that laughed at the naked absurdity of such a comment. Someone in the crowd shouted: “They can’t.” Because, in many cases, they could not.

The body voiced their belief that it had failed the public. Honeman said that the majority of precincts running out of ballots was inexcusable; that a single voter disenfranchised is too many. Moments later, he would vote to excuse it and allow the disenfranchised voters to meet the underside of the proverbial rug. He agreed that the law he felt bound to uphold was “bad code,” but believed that the assembly, as a body, had no choice but to certify the election. “There will be time to remedy the code at a later point.”

That doesn’t address the people screwed this time around; people he was elected to represent on the Assembly.

Assemblyman Chris Birch took a more self righteousness tone in explaining his vote certifying the election. He said he did not see any evidence of conspiracy and felt that the wide margins in the individual campaigns made scrutiny around voting irregularities obsolete. “I’m going to be voting yes to certify this election because it’s the right thing to do.”

The not-present and fictitious prosecution objected furiously in my head. It stood up and said: “The right thing to do? According to who? To Chris Birch? Sure, why not. To the would-be voter turned away? Certainly not.”

My head can get loud at times. Especially in quasi-hypothetical trials with real results.

Assemblyman Dick Traini was compelled by the legal argument framed by Petumenos. “When we take a look at the law we’ve got to certify the election tonight. It’s the only real thing we can do.”

And he’s right, according to the legal opinion; according to the analogy of the Assembly serving as a judge overseeing a case where the election is a defendant, who’s guilt must be proved beyond a shadow of a doubt. But should that opinion dictate fully the job of an elected Assembly member?

Tim Petumenos wants us to believe that the judge is the Assembly and he represents the (election’s) defense, though he authored the entire analogy. Petumenos is seeking the approval of his jury. We understand his argument – that we don’t have the evidence and we don’t have the time to pursue the truth. Justice demands action. We cannot convict this election of fraud or malcontent beyond a shadow of a doubt, despite hundreds of witnesses and Jim Minnery’s admittance of tampering. And if we rush to do so, America could possibly become Angola. No pressure.

The Prosecution spoke up. Which was odd, because we didn’t think it existed.

“[This is] about having courage and integrity… When I took my oath as an Assembly Member, I took an oath to represent the people in this community, period, to the best of my ability. And I have the ability this evening to simply do the right thing. And the right thing is to not certify this election.” – Elvi Gray-Jackson

“I can either vote to uphold the law or I can vote to uphold what’s right. Because the law, currently, is wrong.” – Patrick Flynn

“I am not satisfied that this election is ready to be certified. I am going to err on the side of caution. An abundance of caution is not unconstitutional. I am going to be cautious and vote no.” – Harriet Drummond.

These assembly members raise a significant question that is also not specified in municipal code. As representatives elected to represent the people and uphold the law, which facet is subordinate to the other? Are the concerns of their constituents their primary function, or is the law – or one opinion of the translation of the law – their master? When confronted with substantiated voter disenfranchisement with existing law is translated to ignore, what dictates protocol for the assembly members?

As was stated earlier, certification passed. The election is official, though a change in the results, if it occurred, would retroactively change the status of the certification.

Ernie Hall finished the meeting with a statement that he was not abandoning the election, and that an independent investigation would still take place:

We are working with a recount applicant, Hal Gazaway, and I personally called him this morning and had a conversation with him basically stating my appreciation for the fact that the group stepped up and asked for this…. This does give us the opportunity – this will be a hand count and I think we’re going to answer the question about how accurate the scan machines are. So, I look forward to working and insuring that we try to give some peace of mind, one way or the other.

If there is a silver lining in the chaos that has been this fail of an election, Hall pointed it out in his closing. While reform must happen as it relates to municipal code, Title 28; and while I am disappointed that the answer seems to rest in correcting future mistakes and absolving one’s self with past casualties of bad policy; and while people tasked with carrying out this election utterly failed and have yet to be held accountable, I have great confidence in one aspect: the man tasked with moving forward with the investigation.

Hal Gazaway is a man worthy of respect. He’s someone I admire. He is someone with unquestionable character and integrity. If there was one person I’d want in charge of this investigation, it would be Hal Gazaway. I mean that in all sincerity. We are in good hands.

Stay vigilant, stay focused, stay tuned. This is going somewhere. It has to. I’ve heard some use this as an excuse to tune out and note vote. You can choose to do that. You can choose to identify politically as an indolent whelp. But I reject the notion of giving up because giving a damn about your country is just so hard and frustrating. I don’t think we can afford to be that weak-kneed. Voting might break down, but it has to work, and when it doesn’t, we need to make it. Anything less is lazy cowardice. Be better than that. Fight for more than that. And click here one more time.

Dismissed… for now.

3 COMMENTS

  1. All I can say is that the people who are responsible for this fiasco of an election should not be the ones also investigating it. It is a tremendous miscarriage of the democratic process that no public testimony was allows, and that blatant lies were left unchallenged. The lawyer made a compelling argument for the rule of law, and a door remains open to get to the bottom of what happened. There will be a recount, and we have been told that the assembly will conduct an investigation…Personally, I would have gone for nullification because as Flynn indicated the law is wrong. The people responsible for this need to be uncovered and held responsible.

  2. Petumenos’ court analogy is as broken as this election. (Or maybe it’s “cut” — like the memory card security seal Wendy Isbell saw with her own eyes, a type of eyewitness evidence that Mathew calls “hearsay.”)

    Strangely enough, this court — the Assembly, in a mixture of roles — comprises much the same people as comprise the defense, striving to “defend” the election against the prosecution. The prosecution, meanwhile, has no presence in court at all except in enforced silence (or getting tossed out if that silence is breached). The Assembly-cum-court-cum-defense was the only side empowered to call or examine witnesses or to investigate possible “malconduct” (hence no surprise that it found the election “innocent” via the Election Commission), and also controls access to most of the evidence that the prosecution would require access to in order to prove malconduct or contest the election. Public record requests are all fine & well: but with only 5 working days between Election Commission report and the deadline to file — fat chance.

    Meanwhile, as we proceed towards a recount of 15 precincts — guess who’s guarding the henhouse? Will this be another Cuyahoga County, OH 2004-style recount?

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