Court overturns election results
Incumbent Rep. Benjamin Nageak has been named the winner of the House District 40 primary election, according to a decision issued by Superior Court Judge Andrew Guidi on Oct. 6, which hangs on irregularities in the Shungnak precinct.
"In the present case, most of the irregularities cited by the plaintiffs do not rise to the level of election malconduct. The actions of the election officials in Shungnak, however, are of a much more serious and concerning nature," Guidi wrote in his decision. "The Court finds that the election officials' actions in Shungnak constitute election malconduct because they were significant deviations from constitutional and statutory norms. The Court further finds that the malconduct changed the outcome of the election."
The decision follows a challenge in superior court to the initial election results, filed by Nageak and four qualified voters in September.
In a primary fraught with problems at the polls, this is not the first time the results have shifted, though it is the first time a new winner has been declared.
It began immediately after the primary, on Sept. 6, when the Ballot Review Board certified the initial results with Westlake beating Nageak 819-815.
On Sept. 12, the Division did a recount which further widened the gap between the two, increasing Westlake's total to 825 and Nageak's to 817.
On Sept. 16, Nageak and four qualified voters filed a complaint against Lt. Gov. Byron Mallott and Division of Elections Director Josephine Bahnke alleging that a mishandling of the election in various precincts altered the final results.
The complaints stemmed from conduct in:
Point Lay, where there was only one election worker, rather than three
"Other precincts," where there were only two election workers
Browerville, where registered Republican voters were required to vote question ballots if they asked to vote Democrat, which was an open ballot that could be voted by registered voters of any or no party
Buckland, where a number of special needs voters received Democratic ballots although they were undeclared and should have had a choice, and where the forms for them were not completed properly and were not returned to Nome until six days after the election
Bettles, where an election worker identified a voter as Republican and did not give him the choice between ballots
Kivalina, where seven voters voted both the Democratic and Republican ballots but were required to vote question on the second ballot, which the Division did not count in the initial review but did in the recount
Shungnak, where all of the voters were given both Republican and Democratic ballots and were not asked to submit their second ballot as question
Nome, where, during an absentee and question ballot review session, workers misplaced four absentee ballots and then removed four question ballots and counted them as absentees to remedy the error
One of the issues that came up repeatedly stemmed from the difference between the Republican and Democratic ballots. Republicans hold a closed primary, in which only registered party members and nonpartisan/undeclared voters may vote their particular ballot. Democrats hold an open primary, in which any registered voter, including Republican voters, may use their ballot. That means registered Democrats must be given a Democratic ballot when they come to vote while other registered voters must be allowed a choice.
Guidi found that the errors in Kivalina and Shungnak were significant enough to warrant alterations for both candidates. From Kivalina, both Nageak and Westlake had their counts reduced by a single vote.
The other issues did not constitute "malconduct," as defined by the court.
"Nageak did not prove the Division acted with knowing or reckless indifference to election laws and these irregularities did not result in any bias for one candidate or another. In short, these irregularities were not systematic, and were instead, isolated and random," Guidi wrote.
In Shungnak, on the other hand, the court found election workers' conduct "violated clearly established constitutional rights as well as the requirement of statutory law."
The court determined that the Shungnak results "biased" the election as a whole, given that the mistakes were significant and occurred in a precinct that leaned heavily in favor of one of the candidates — Westlake.
"The same error, in a precinct strongly favoring Mr. Nageak, would have biased the vote the other way," Guidi wrote.
Guidi found that election workers in Shungnak never availed themselves of training offered by the Division of Elections and failed to properly follow instructions provided to them.
"The evidence shows that the Division offered training to the Shungnak election workers in preparation for the 2016 election, but they did not participate," wrote Guidi. "None of the Shungnak election workers participated in any training offered by the Division in 2016, and there is no evidence that Division supervisors followed up to investigate why or to offer additional training."
In addition, Guidi noted that election officials failed to review election materials sent to them in advance, failed to review and follow the instructions on the ballot choice poster provided to them and the informational placards sent to them explaining how to conduct the election.
"The evidence also warrants a finding that election officials in Shungnak acted in reckless disregard of the requirements of law," he wrote. "As their employer, trainer, and supervisor, the Division shares in the responsibility for the local officials' conduct."
The Division of Elections argued that the problems in Shungnak were the result of an "honest mistake" by poll workers, not willful disregard of instructions, an argument the court disavowed in no uncertain terms.
"This conduct cannot be characterized as an 'honest mistake,' as the Division argues, without robbing the term of all meaning and undermining accountability for the conduct of elections," Guidi wrote. "Accepting the malconduct as an 'honest mistake' would undermine the credibility of the election and incentivize similar 'honest mistakes' in the next election cycle. This would be a terrible message to send."
As a result, Guidi turned to past voter statistics and court cases in an effort to balance this year's results, in which 47 of the 50 non-question Democratic votes went to Westlake and three went to Nageak.
The court cited the Alaska Supreme Court's decision in Hammond v. Hickel from 1978, which states: "If 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."
According to testimony of former Alaska Republican Party Chair Randy Ruedrich, the average number of Republican ballots cast in Shungnak in each election since 2006 was 12.75.
The court then used that number to determine the number of Republicans who typically would not have voted the open Democratic ballot, but were given one in error this year.
Using that rubric, Guidi allocated proportional numbers of votes to each candidate, meaning that Westlake received an extra 11 votes and Nageak received a single extra vote, which Guidi then deducted from their final tallies.
That decision left Nageak in the overall lead by two votes, rather than Westlake ahead by eight.
Critics of the decision say that by using past averages of Republican voters to determine how many would have voted or not voted the Democratic ballot this year potentially negates specific and intentional decisions made by voters in this particular election. More Republicans than usual may have chosen to vote the Democratic ballot than ever before, for example, which is not taken into account if past numbers are used.
This ruling by the superior court would have Nageak keep his seat with a final tally of 815-813 votes, rather than calling for a total redo of the election in November, which was also an option.
Alaska Dispatch News reported that the results of this case will be compiled with a separate challenge filed by Nageak calling for a full hand recount of the ballots, which will then go to the Alaska Supreme Court. That court must make a decision by Oct. 14 as absentee ballots for the November elections will be mailed to voters that day and must reflect the most up-to-date decision.
If the supreme court calls for a complete overhaul and for a new primary election to be held, both Westlake and Nageak must be shown on the ballot. Only Westlake appears on the sample ballot at this time.