[Update: An article covering the October 12, 2016 Alaska Supreme Court decision on this issue can be found at Alaska Public Media.]
The Senate State Affairs Committee held a hearing in Anchorage Monday on irregularities during the August 16 primary election that could affect the outcome in House District 40, encompassing most of Northern Alaska.
There were multiple reports, confirmed Monday by Director of Elections Josie Bahnke, that voters in Shungnak, part of House District 40, received both the Republican and Democratic ballots and that a poll worker had not received mandatory training.
The most recent unofficial primary results show Kotzebue resident Dean Westlake ahead of incumbent Rep. Ben Nageak (D-Barrow) by only 21 votes.
The Division of Elections reported that 100 ballots were cast in the Shungnak precinct, 31 more than were cast in the 2014 primary, despite the precinct having nearly the same number of registered voters as 2014.
“Are those votes going to be certified?” Barrow resident Luke Welles asked the Senate State Affairs Committee, noting that the number of votes in the precinct is material to the outcome in the district.
Welles, a registered Republican who voted in the Browerville precinct, testified that he personally experienced issues at the polls. Election workers initially told him he must vote a questioned ballot if he chose the Democratic ballot, which is open to all registered voters.
In a presentation Monday, while hand counting of some statewide ballots was occurring in Juneau’s Centennial Hall, Senate State Affairs cited a constitutional responsibility to review elections.
Committee Chair Bill Stoltze (R-Chugiak) declared, “The outcome of the election is not the purview or even the concern of this committee.”
But there are obvious political consequences of the primary.
Nageak caucuses with the Republican-dominated House majority. He also co-chairs the House Resources Committee, which rewrote Gov. Bill Walker’s oil and gas tax credit reform package to drastically reduce its impact on the industry. The House Resources version of the bill was the least onerous version considered by the legislature last session.
Westlake entered the primary with the support of the Alaska Democratic Party.
There is no Republican candidate in the House District 40 race, so if the results hold and no one mounts a write-in campaign for the seat, the House majority will likely lose a caucus member, bringing the possibility of a bipartisan House coalition including the Democrats closer to fruition.
Senate President Kevin Meyer (R-Anchorage) echoed Stoltze in an op-ed to the Alaska Dispatch News (ADN), calling the Senate’s interest in the primary non-partisan. Yet Meyer made sure to note that this is the first election overseen by Lt. Gov. Byron Mallott, a Democrat.
Mallott served as co-chair of U.S. Sen. Lisa Murkowski’s (R-Alaska) 2010 write-in campaign, necessitated by a primary loss to Joe Miller.
Therefore, Stoltze said, Mallott is “acutely aware of primary ballot dynamics.” Stoltze hinted that previous statements by Mallott encouraging people to vote in the federal races during the primary could have contributed to registered Democrats also voting the Republican ballot, including Murkowski’s 2016 primary contest.
“How do you certify an election that was not legal?” Meyer asked during the hearing.
Meyer participated Monday, though he is not a member of Senate State Affairs.
Bahnke responded that she could not answer until the 10-member State Review Board has certified the election on Friday. Bahnke did say that the State is considering a variety of options with regard to House District 40 if the result is changed by Shungnak.
Courts Would Be Unlikely to Overturn Election Results
If Nageak does not pay $2,000 for a recount, ten voters from House District 40 may join in an appeal for a recount.
Alpheus Bullard, one of the legislature’s legal advisors, told Senate State Affairs the State cannot independently initiate a recount, even under suspicion of fraud, unless the final vote is tied.
Sen. Lesil McGuire (R-Anchorage) responded that this might be something for the legislature to consider changing in the future.
After the State completes its review of the election Friday, if there is no appeal for a recount, Nageak or ten voters from House District 40 would have ten days to contest the election in superior court. They would have the difficult task of “prov[ing] bias resulting from a significant deviation from statutorily prescribed norms that were sufficient to have changed the result of the election,” according to a legal memo provided to the committee.
Stoltze suggested Welles could be one of the ten plaintiffs if he has “the energy and the pocketbook.”
Most recently, in a case brought by Joe Miller in 2010, the Alaska Supreme Court reiterated, “Courts are reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own.”
Bullard said Monday that courts have overlooked violations of statute by the Division of Elections in an attempt to preserve the will of the voters.
“We have statutes that have pretty clear intent,” Stoltze reacted. “It’s almost like statutes schmatutes” when the courts get involved.
Bullard repeatedly refused to speculate at the invitation of committee members whether a court would overturn the August primary results. The situation in Alaska is a novel one without obvious comparison, he said.
To avoid the election being decided in the courts, McGuire urged Bahnke to delay certification. McGuire offered to write the governor a letter to that effect.
Otherwise, “This is one of those that you can see there will be [legal] challenges,” McGuire said.
“I’m committed to getting this right; I’m not committed to getting this right now,” assured Bahnke.
Problems were not confined to House District 40.
In another district where an incumbent was beaten by a challenger with the support of the Democratic Party, Zach Fansler handily defeated Rep. Bob Herron (D-Bethel) in the race for the House District 38 seat. Again, there is no Republican candidate.
Herron serves as House Majority Whip.
In the Chefornak precinct of House District 38, the number of ballots cast was exactly double the number of votes cast in the federal races.
In Newtok, the number of total ballots cast exceeded the number of votes cast in the U.S. representative contest by 134. Voter turnout in Newtok was reported at 105 percent.
“That’s some spirited patriotism,” joked Stoltze.
Bahnke explained that vote counting in those precincts is done by hand, then reported to a central office over the phone. During that process, the tallies were doubled. The error will be corrected during the review process this week, she said.
McGuire said that smaller communities should be given Diebold vote-counting machines similar to those in the cities.
“What’s good for Anchorage and the Mat-Su should be good for Chefornak and Newtok,” she said.
In addition to the problems in District 38, election results in Copper Center were not reported until ten days after the election, though this is within the legal timeframe.
Bahnke and committee members agreed that training of election workers was the main issue with the primary election.
Bahnke said that 1,571 poll workers received the four-hour training. However, in an attempt to save money during budget cuts, many of those were trained remotely or simply watched a training DVD without personal instruction.
There was no in-person training in Kotzebue or Barrow.
The poll worker in Shungnak who distributed both Republican and Democratic ballots to voters last received training in 2014. While the State is mandated to provide election training every two years, there are no sanctions for poll workers who don’t show up, Bahnke said, something Senate Majority Leader John Coghill (R-North Pole) said must be addressed.
Sen. Bill Wielechowski (D-Anchorage) asked if some of the election problems could be avoided with mail-in ballots, an option Bahnke said the Division of Elections is considering. But Michael Chambers, chair of the Alaska Libertarian Party and co-founder of United for Liberty, said such a system would result in the highest number of voters being “Dempsey-Dumpster [sic] divers.”
No precincts immediately reported problems related to the legally-mandated expansion of assistance to speakers of Alaska Native languages.
Stoltze also declined to address Meyer’s allegation that voters in Newtok did not have access to voting booths, citing insufficient evidence.