Nageak v. Mallott

          Appeal in File No. S-16462 from the Alaska Division of Elections. Appeal in File Nos. S-16492/16494 from the Superior Court No. 3AN-16-09015 CI of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge.

          Timothy A. McKeever and Stacey C. Stone, Holmes Weddle & Barcott, P.C., Anchorage, for Appellant Nageak and Appellees and Cross-Appellants Nageak, Elkins, Elkins, Welles, 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.

          OPINION

          STOWERS, CHIEF JUSTICE.

         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 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. 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
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 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 Governor^[9] 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 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 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 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 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.

         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.

         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.

         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:

In an election contest where no fraud, corruption or ineligibility of a party is alleged, the evidence presented must demonstrate the existence ofmalconduct 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.

         A. Recount Appeal^[26]

         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 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 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 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. Thomas^[37] 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 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 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

         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 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 ...