Oral arguments were heard Friday in a lawsuit challenging the formation of a unity ticket between independent gubernatorial candidate Bill Walker and his running mate, Democrat Byron Mallott.
Steve Strait, chairman of District 21 for the Alaska Republican Party, sued Lt. Gov. Mead Treadwell, who authorized the ticket, in his capacity as lieutenant governor, as well as Gail Fenumiai in her capacity as director of the Alaska Division of Elections (DOE).
Superior Court Judge John Suddock rendered a decision from the bench following the arguments, noting that time was an issue and he expected the case to be appealed to the Alaska Supreme Court. Suddock ruled that the DOE had validly issued an emergency regulation allowing the unity ticket.
In his September 17 filing, Strait alleged, via his attorney Kenneth Jacobus, that Treadwell’s emergency regulation allowing Mallott to replace Walker’s running mate Craig Fleener was unwarranted. “Treadwell stated his justification for the emergency regulation as ‘[t]here is no procedure in place at this time for a non-party candidate for governor to fill the vacancy created by withdrawal’ of the non-party lieutenant governor candidate,” Jacobus wrote.
The Prosecution’s Argument
Jacobus said on Friday that the case was about whether primary elections mean anything, or whether the political process was under the control of the Koch Brothers, George Soros, and Vince Beltrami.
Charles and David Koch, who donate heavily to conservative candidates and political action committees (PACs), are the owners of Koch Industries. Soros is chairman of Soros Fund Management and a wealthy donor to progressive candidates and causes. Beltrami is president of the Alaska AFL-CIO.
Jacobus mentioned the influence of unions in the ticket merger numerous times and with an air of disgust. In his brief, Jacobus wrote that the process of merging the Walker and Mallott campaigns “was nothing more than a political strategy put into play by the AFL-CIO, so as to garner a better chance of defeating Governor [Sean] Parnell in the November 4, 2014, general election.”
Mallott, Jacobus argued Friday, had not reached the ballot as a lieutenant governor candidate by receiving the most votes in the primary or via petition as allowed by Alaska law. Jacobus said this disqualified Mallott from appearing on the ballot.
Mallott’s appearance on the ticket also violated AS 15.25.110, Jacobus said. That statute provides a means for a political party to fill a vacancy following a primary election. It does not provide a means of filling a vacancy on a non-party ticket.
Suddock brought up the decision in O’Callaghan v State of Alaska, the Alaska Supreme Court ruling that affirmed the right of Jack Coghill, Republican primary winner for the office of lieutenant governor, to run with Wally Hickel on the Alaska Independence Party (AIP) ticket in the 1990 general election.
I hear you saying that shouldn’t have been allowed, Suddock said to Jacobus.
That situation was different, argued Jacobus, because the Republican Party did not continue to support Hickel and Coghill after the switch. Mallott is still a Democrat receiving support from the Democratic Party, even though there is no Democratic ticket and Mallott appears on the ballot without party affiliation, Jacobus said.
Per state statute, an emergency regulation is called for when “necessary for the immediate preservation of the public peace, health, safety, or general welfare.” Such circumstances are “rarely found to exist,” again per statute.
Jacobus argued that any emergency in the current scenario was the product of the procrastination of the Walker-Mallott campaign and did not translate to the state.
Suddock seemed least convinced by this portion of Jacobus’ argument. What would happen if a non-party candidate for lieutenant governor died following the primary, he asked Jacobus. The problem would not be self-created, yet would the ticket be out of luck?
While filling that vacancy would be unconstitutional, Jacobus responded, the death of a candidate would constitute a true emergency.
It did not have to be this way, said Jacobus. Prior to the August primary, Walker and Mallott had the option of both being petition candidates, a process Walker followed to appear on the general election ballot as an independent candidate. Or, after the primary, Jacobus said Walker and Mallott could have chosen to run together on the Democratic ticket.
“Walker followed the rules,” said Jacobus. “The problem is Mallott.” Jacobus suggested that votes for the unity ticket on ballots already mailed to absentee voters should be treated as votes just for Walker. Any ballots still in the possession of the state should be run through a printing press blotting out Mallott’s name.
This was a departure from the initial remedy sought by Jacobus. He previously recommended the restoration of the three-way gubernatorial race between Walker, Mallott, and Parnell.
Over 52,000 people voted for Mallott for governor, Jacobus said, votes invalidated by the unions. In his proposed scenario with Mallott’s name stricken from the ballot, Jacobus said those voters could still write in Mallott for governor. Mallott is easier to spell than Murkowski, he joked.
Jacobus turned his back to Suddock multiple times and addressed the full courtroom, even directly addressing Walker and Treadwell, both of whom were present. He was animated.
The Defendants’ Argument
The attorney for Treadwell and Fenumiai, Margaret Paton-Walsh, offered the first response to Jacobus. (Elizabeth Bakalar, also attorney for the defendants, listened in via conference phone.) Paton-Walsh’s delivery was measured and always directed to the bench.
She said the general election was already in motion. Ballots had already been printed, absentee ballots mailed, and some votes likely already cast. Any change at this point would result in chaos and a threat to the general welfare, she argued.
Jacobus’ relief was “baffling,” Paton-Walsh said. He would suggest that Walker go without a running mate, then appoint a lieutenant governor after the election, thereby depriving voters of a choice.
While Jacobus blamed Walker-Mallott for procrastination, Paton-Walsh said the real delay had been in the filing of Strait’s lawsuit. The delay had created “impossible situations” and prejudice against the state, as well as throwing the election into doubt. Paton-Walsh said the doctrine of laches applied to Strait’s suit, meaning that the delay in asserting his rights should preclude him from receiving full relief.
Jacobus recommended Walker appoint a lieutenant governor post-election, but Paton-Walsh said statutes of succession clearly intended that a lieutenant governor only be temporarily appointed. In the event of a vacancy in the governor’s office, the lieutenant filling that office would have to be elected.
Paton-Walsh said that Jacobus’ concerns about the process of the unity ticket’s formation brought up rights of free association and speech, as well as voters’ rights of choice. “A core element of free speech is to define yourself politically,” she said.
The coalition formed before the only real deadline that mattered, the printing of the ballots, in which she said the DOE has a compelling interest. As a neutral party, DOE had no compelling interest prior to that moment. Involving itself in the political judgment of ticket formation would have violated its “characteristic impartiality.” Allowing the unity ticket was the most neutral thing DOE could have done, said Paton-Walsh.
As for the emergency regulation, Paton-Walsh said Strait’s complaint was directed at the “wrong actors.” The DOE declared the emergency, not Walker-Mallott. That emergency was because of a deadline that would not accommodate the standard 90-day process for enacting a regulation. Delay or disruption of the election does constitute a threat to the general welfare, she concluded.
The Walker-Mallott Campaign Has Its Say
Next to dispute Jacobus was Scott Kendall, attorney for intervening defendant the “Walker-Mallot for Alaska” campaign. Kendall said the courtroom had borne witness to some “epic [and figurative] table pounding by Mr. Jacobus” because he did not have the backing of the law. Rather, Jacobus was attempting to overturn 32 years of past practice while decrying back room deals.
How the decision was reached to merge the tickets was not relevant to the court, argued Kendall. Even so, Jacobus had provided no sworn documents corroborating his conspiracy theory about the AFL-CIO. What was relevant was the decision in O’Callaghan, which Kendall said should govern Suddock’s ruling.
Walker and Mallott have been campaigning and fundraising together, said Kendall. How would those funds be separated if Strait won? Further, campaign finance law allowed the ticket to raise twice the amount from a single source that an individual candidate could. Walker, running without Mallott, would be financially handicapped, said Kendall.
Kendall reinforced Paton-Walsh’s arguments for free association and added a threat to equal protection. AS 15.25.110, the statute allowing parties to fill vacancies after the primary used by Jacobus as justification for denying Mallott access to the ballot as an unaffiliated candidate, did not afford non-party candidates the same rights.
Kendall concluded by pointing out a lack of timeliness to Jacobus’ supplementary filings. Suddock earlier responded to that claim by asking rhetorically, “Would it comfort you to know I read it, and I can remember nothing about it?”
Given a chance to offer a final rebuttal, Jacobus, who appeared flustered, said the court should not ignore something that is illegal, but should fix it so it would not be repeated in the future.
Ruling From the Bench
Suddock began his decision by saying the Superior Court believed administrative agencies like the DOE are entitled to a degree of deference for long-time practice. Those agencies have built up a body of knowledge while interpreting statutes that govern their conduct, which the court also shows deference.
The judge disagreed that O’Callaghan applied directly to this case. That decision reads, “We conclude that AS 15.25.110 does not prohibit a candidate who withdraws from having his or her name placed on the ballot as the candidate for a different political party” (emphasis added). Suddock noted that Mallott went from one party to no party.
Suddock described the back room “smoke and perfume” of party politics. Statute allowed internal party petitions and “backstabbing” after a primary, but this was not the question before him due to the non-party ticket, he said.
O’Callaghan does “give me pause,” said Suddock, because the Supreme Court said that parties can play “as rough and dirty” as they want. Non-party candidates should have the same rights and responsibilities under the equal protection clause.
In 1982, Alaska Attorney General Norman Gorsuch issued his opinion regarding the use of emergency regulations. AG opinions, said Suddock, are also entitled to some deference. Since 1982, opinions have been consistent that the DOE has the authority to issue emergency regulations. “30 years means something,” he said.
Jacobus was wrong, said Suddock in no uncertain terms, when he argued that such a regulation would need to come from the legislature. The legislature, said the judge, can delegate to agencies by statute, and it has done so. “I don’t know why” the legislature hasn’t sought a statute addressing non-party candidate vacancies, he said, but there have been 15 legislatures since 1982, any of which could have acted.
Suddock was unequivocal in ruling on the legitimacy of the emergency, calling a post-primary vacancy on a ticket a “rare event. It doesn’t come up that often, but when it does it’s a train wreck, and the people are entitled to a resolution.” Voters, he said, expect an election with at least two candidates, to have a choice, and they do not expect to get a “crippled” candidate without a running mate.
The only way to handle it without a statute, said Suddock, is “the way it’s always been handled.”
Suddock offered further criticism of Jacobus’ argument, specifically his assertion that Walker had the option to run as a Democrat, “even though he never has been [a Democrat], never will be.” Doing so would be “intellectually disingenuous,” said Suddock.
Speaking in the hypothetical, Suddock said if two opposing candidates exited a church and were hit by a bus, Jacobus would afford only the candidate with a party affiliation the option to have her vacancy filled. This is because the candidate from the political party would have a nexus to the voters via her party’s central committee.
Such a notion has no basis in statute, said Suddock, but comes only “from the pen of Mr. Jacobus.” Suddock said he found such disparate treatment an “irrational basis of distinction.”
He tempered his remarks somewhat by complementing Strait on his choice of attorney, calling Jacobus “creative and dogged.” Suddock also had kind words for the DOE, whose neutrality and swift action for an opposition ticket is “something we can all be proud of.”
Suddock’s most glowing praise was saved for Paton-Walsh, whose legal writing he called some of the best he has read, and Laura Fox, who aided in the drafting of the briefs.
One argument from the defendants Suddock found unconvincing was the doctrine of laches. Filing suit is a process that takes time, he said. But he granted the defendants summary judgment, saying that the emergency regulation was validly enacted within the discretion of DOE.
If Friday’s ruling holds up on appeal, the short answer to Jacobus’ initial question of whether primaries matter could be “no.”