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Dodge v. Meyer

Supreme Court of Alaska

July 5, 2019

KATHRYN DODGE, Appellant and Cross-Appellee,
v.
KEVIN MEYER, Lieutenant Governor of the State of Alaska, and GAIL FENUMIAI, Director of the Alaska Division of Elections, Appellees, and BARTON LeBON and the ALASKA REPUBLICAN PARTY, Intervenors and Cross-Appellants.

          Appeal from the Alaska Division of Elections. Superior Court No. 3 AN-18-00001 RA

          Patrick W. Munson, Boyd, Chandler, Falconer & Munson, LLP, and Thomas P. Amodio, Reeves Amodio, LLC, Anchorage, for Appellant and Cross-Appellee.

          Katherine Demarest, Laura F. Fox, and Margaret Paton-Walsh, Assistant Attorneys General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellees.

          Stacey C. Stone and Molly A. Magestro, Holmes Weddle & Barcott, PC, Anchorage, for Intervenors and Cross-Appellants.

          Before: Bolger, Chief Justice, Stowers, Maassen, and Carney, Justices, andFabe, Senior Justice. [*] [Winfree, Justice, not participating.]

          OPINION

          BOLGER, CHIEF JUSTICE.

         I. INTRODUCTION

         This recount appeal arises from the 2018 Alaska House of Representatives race in District 1. Following a recount the election was certified, with Kathryn Dodge receiving 2, 662 votes and Barton LeBon receiving 2, 663. Dodge filed this recount appeal pursuant to AS 15.20.510. On January 4, 2019, we issued an order affirming the recount decision and indicated that this opinion would follow.

         II. FACTS AND PROCEEDINGS

         In the November 6, 2018 general election, Dodge and LeBon ran for the House District 1 seat in the Alaska House of Representatives. On November 26 the State Division of Elections (the Division) certified the election result as a tie, with each candidate receiving 2, 661 votes.[1] The tie triggered an automatic recount.[2] The recount was held on November 30, and representatives of each candidate and political party had the opportunity to observe and challenge the Division's vote-counting decisions. The Division counted two additional votes for LeBon and one additional vote for Dodge; the State Elections Director (the Director) certified LeBon as the winner by one vote.[3]

         During the recount on November 30, Dodge challenged four ballots. She argued that one ballot, excluded as "overvoted" because it contained markings in more than one oval, should have been counted for her; that two counted ballots should have been excluded because they had been cast by individuals who were not residents of the district; and that one ballot, excluded due to the voter's registration in another district, should have been counted because the voter's registration in the other district was inadvertent. LeBon challenged the same overvoted ballot as Dodge, but he argued it should have been included as a vote for him. LeBon also challenged five additional ballots. The Director maintained her original vote-counting decisions in the face of these nine challenges.

         On December 5 Dodge filed this recount appeal challenging the Director's recount decisions on the four ballots Dodge had challenged.[4] LeBon and the Alaska Republican Party filed a motion to intervene on December 7 and then cross-appealed on December 10, requesting review of the six ballots LeBon had challenged. We appointed Superior Court Judge Eric A. Aarseth to serve as a special master to conduct hearings and other proceedings as necessary to make a report with recommended findings of fact and conclusions of law.[5] Judge Aarseth held an evidentiary hearing on December 20 and issued his recommendation report on December 21. He recommended that "all decisions of the Director in conducting the recount for House District 1 be upheld." The parties then filed briefing with objections to Judge Aarseth's report and responses to the objections.

         III. STANDARD OF REVIEW

         This case does not present any factual disputes but instead involves only statutory interpretation. "We exercise independent judgment when interpreting statutes which do not implicate an agency's special expertise or determination of fundamental policies," such as the election statutes at issue here.[6] "[W]e adopt 'the rule of law that is most persuasive in light of precedent, reason, and policy.' "[7]

         IV. DISCUSSION

         A. Record Considered On Recount Appeal

         One preliminary issue in this appeal is whether we may consider only the record developed during the recount or if we may also consider new evidence introduced by the parties during this appeal. Dodge argues that we should consider evidence submitted after the conclusion of the recount. In response the State argues that the record should be limited to the materials available to the Director at the time of the recount. We need not determine the scope of the evidence we may consider in a recount appeal, however, for we would affirm the Director's recount decision even if we considered the evidence admitted at the hearing.[8]

         B. The ...


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