BENJAMIN N. NAGEAK, Appellant,
v.
BYRON MALLOTT, Lieutenant Governor of the State of Alaska, and JOSEPHINE BAHNKE, Director of the Alaska Division of Elections, Appellees, and DEAN WESTLAKE, Intervenor. BYRON MALLOTT, Lieutenant Governor of the State of Alaska, and JOSEPHINE BAHNKE, Director of the Alaska Division of Elections, Appellants and Cross-Appellees,
v.
BENJAMIN N. NAGEAK, ROB ELKINS, ROBIN D. ELKINS, LAURA WELLES, and LUKE WELLES, Appellees and Cross-Appellants, and DEAN WESTLAKE, Intervenor.
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 ...