[Update: An article covering the October 12, 2016 Alaska Supreme Court decision on this issue can be found at Alaska Public Media.]
A superior court judge overturned Thursday the primary election results in House District 40, ordering the Alaska Division of Elections (DOE) to certify incumbent Rep. Ben Nageak (D-Barrow) the winner.
With the support of the Alaska Democratic Party, Dean Westlake ran against Nageak, a member of the Republican-led House majority caucus. After a primary so close it necessitated an electronic recount, DOE declared Westlake the winner by an eight-vote margin, 825-817.
Nageak challenged the result in court, alleging numerous voting irregularities, including insufficient numbers of poll workers in certain precincts and a disproportionate number of ballots cast by special needs voters in Buckland.
Luke Welles, a registered Republican who testified before the Senate State Affairs Committee that Browerville poll workers told him to vote a questioned ballot when he requested the Republican ballot, was one of four voters to join Nageak’s suit.
Superior Court Judge Andrew Guidi found most of Nageak’s complaints did not show reckless indifference to election laws. However, in Shungnak, each of 51 voters was given both the Republican ballot and the Democratic ballot.
State election law is clear that a voter may cast only one ballot. Further, while any registered voter may vote the Democratic ballot, the Republican primary is closed and available only to registered Republicans and independents (undeclared or nonpartisan).
Guidi agreed with Nageak that allowing voters to cast more than one ballot violated other voters’ equal protection rights.
“The 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,” Guidi wrote in his decision. “Given the constitutional dimension of these actions and the scale on which they occurred, it is the opinion of this court that they constitute election malconduct.”
Courts are reluctant to alter the outcome of elections for fear of disenfranchising voters.
“[A] challenger must show that the deviations [from the law] either biased the vote or that they resulted from knowing noncompliance or reckless indifference to the requirements of law,” Guidi explained.
Because Shungnak is close to Westlake’s home of Kotzebue and favors Westlake, Guidi concluded that giving voters both ballots biased the outcome.
In addition, Shungnak poll workers had access to election training but did not avail themselves of it.
“This conduct cannot be characterized as an ‘honest mistake,’ as the Division [of Elections] argues, without robbing the term of all meaning and undermining accountability for the conduct of elections,” Guidi wrote.
Treating it as an “honest mistake” would also “incentivize similar ‘honest mistakes’ in the next election cycle,” Guidi warned. “This would be a terrible message to send.”
DOE Director Josie Bahnke acknowledged before Senate State Affairs that while the State is required to provide election training every two years, there are no sanctions for poll workers who do not show up for training.
Much of the election training in rural Alaska is done with a DVD presentation, rather than in person.
Once the burden of proving election malconduct is met, Guidi wrote, “the challenger must also show that the malconduct was sufficient to change the result of the election.”
Guidi cited the Alaska Supreme Court’s decision in Hammond v Hickel in determining whether the outcome of the House District 40 race would change.
The Court wrote in that 1978 ruling, “[I]f 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.”
Of the 50 unquestioned Democratic ballots cast in Shungnak, 47 went to Westlake and the remaining three to Nageak.
Relying on the testimony of former Alaska Republican Party Chairman Randy Ruedrich, Guidi found that the average number of Republican ballots cast in Shungnak since 2006 is 12.75.
Guidi then multiplied that number, the number of likely Republicans who ordinarily wouldn’t have voted the Democratic ballot, against the percentage of the Democratic ballots won by both candidates. Using this method outlined in Hammond, Guidi determined that Westlake received 11 extra votes in Shungnak and Nageak received one, thereby affecting the result of the primary.
Rather than Westlake winning by eight votes, Guidi’s tally has Nageak winning by two.
Ruedrich’s testimony on behalf of a Democrat is a reflection of rural Alaska politics. Rural Democrats, like Nageak, typically caucus with the Republican majority in the legislature. No Republicans ran in the primary, so the result of the Democratic primary and the subsequent lawsuit will determine who holds the seat.
The result in House District 40 is seen as key to a potential bipartisan coalition that could replace the current House majority, depending on other results in the November election.
In September, Democratic Party Chair Casey Steinau protested Republican Party Chairman Tuckerman Babcock’s call for an invalidation of the House District 40 primary results.
“This attempt to meddle in a Democratic Primary and silence rural Alaska is a blatant overstep by Republican leadership, designed to undermine a result they don’t like,” Steinau said. “If the Republican Party wanted to have a candidate appear on the November ballot, then their candidate should have run as a Republican.”
Guidi’s ruling means that instead of redoing the election in November, Nageak would hold his seat with a final tally of 815-813. Guidi ruled that the total reflect a deduction of one vote apiece due to irregularities in Kivalina similar to those in Shungnak.
The case, which according to Alaska Dispatch News will be consolidated with Nageak’s separate challenge for a full hand recount, now goes to the Alaska Supreme Court. A decision must be rendered by October 14, when absentee ballots are scheduled to be mailed to voters.
On Thursday afternoon, Westlake was still the only candidate shown on a DOE sample ballot as running for the House District 40 seat.