An Alaska Superior Court judge Friday morning denied a complaint brought by a Republican Party official that could have unraveled the "unity" ticket of gubernatorial candidate Bill Walker and his running mate, Byron Mallott.
Steve Strait, an Anchorage district chair of the Alaska Republican Party, said he will decide over the weekend whether to appeal the decision to the state Supreme Court.
Judge John Suddock said the lieutenant governor and the Division of Elections acted appropriately when they issued an emergency regulation Sept. 2 allowing the merger of the "nonparty" ticket, though primary voters had previously chosen Mallott as the Democratic nominee for governor.
In a lengthy explanation of his decision, Suddock said he was constrained by three decades of precedent, including a Supreme Court ruling, attorney general opinions, similar decisions by past lieutenant governors, and numerous Legislatures that had "OK'ed this kind of monkey business after the primary" by not creating a statute to address such situations.
"I just don't have any basis to invalidate an agency regulation acting under powers delegated to it to do sensible things," said Suddock, issuing his decision from the bench to speed a possible appeal to the Supreme Court. More than 2,300 ballots have already been sent to overseas and military voters, and hundreds of thousands of ballots have been printed.
Strait said he and his attorney in the case, Ken Jacobus, former lawyer for the Alaska Republican Party, needed at least a day to examine the details of Suddock's decision before deciding whether to appeal.
"We think the judge erred in his decision," Strait said. "We'll have to take a day to digest what points of law we can come back on."
Strait had argued in his complaint that crass political calculation led to the merger, with the Alaska AFL-CIO, the state's umbrella labor organization, saying it would not endorse either Mallott or Walker because they would lose to Parnell in a three-way race. Then came a special Labor Day meeting, with the Democratic Party central committee deciding not to field candidates for governor or lieutenant governor if Mallott resigned along with his running mate, Alaska Sen. Hollis French.
Both men stepped down. Walker's original running mate, Craig Fleener, also resigned, opening the door for Walker and Mallott to join forces.
The courtroom battle on Friday attracted more than 25 spectators. One of those was Walker, who said he was pleased and not surprised by Suddock's decision. Before the merger, his campaign had analyzed past policy, including three times that emergency regulations had allowed nonparty governor candidates to select running mates. They knew the merger was legally safe.
Walker said he was happy Suddock noted that a nonparty gubernatorial candidate should have similar rights as party candidates to fill a vacancy. "As a nonpartisan I shouldn't be treated differently because I'm running as an Alaskan," Walker said.
Suddock: Elections Division not a fact-finding agency
In his complaint, filed nine days before Friday's hearing, Strait argued that tens of thousands of primary voters who had chosen Mallott as the Democratic nominee are being disenfranchised by the emergency regulation.
Strait also argued, among other things, that no emergency existed to warrant such a blatantly political decision, one that meant to merge candidates from two losing tickets with the hope of defeating Gov. Sean Parnell and Anchorage Mayor Dan Sullivan, the Republican choice for governor and lieutenant governor.
"Self-created procrastination and political strategy and design do not constitute an emergency" under state law, Jacobus told the courtroom Friday.
Jacobus argued that Walker's name should appear on the ballot alone, since he had followed the rules for candidates nominated by petition, gathering signatures to appear on the ballot as an independent choice for the primary election.
But Mallott's name should be stricken from the ballot because it "has no nexus to the voters," Jacobus argued. He was simply appointed by Walker, never ran for lieutenant governor and never gathered signatures to appear as a petition-nominated candidate.
Jacobus offered Suddock a solution: Ballots from overseas and military voters that had already been returned with "Yeas" for the Walker-Mallott ticket could be counted as votes for Walker. Ballots that have been printed but not yet made available could be run through a printing press so Mallot's name could be blacked out.
If Mallott's name could not be easily removed, voters could be informed at polling places and through fliers that votes for Walker-Mallott would count only as votes for Walker.
If it turns out Walker is elected, he could then appoint a lieutenant governor, Jacobus said.
State attorney Margaret Paton-Walsh shot back during her argument, calling Jacobus' solution "baffling."
"So the voters can elect Mr. Walker governor and then he can appoint Mr. Mallott as lieutenant governor, and that is OK," said Paton-Walsh. "But it is not proper for them to run as a ticket and have the voters vote for both of them together. That doesn't make any sense at all."
Suddock spent close to half an hour detailing the thinking that led to his decision. He said he did not agree with an argument presented by the state and Scott Kendall, attorney for the Walker-Mallott campaign, that Strait's complaint should be denied because it was filed too late -- after the election was underway. As a concerned citizen, Strait had a right to bring his case, Suddock said.
But, in opposition to Strait's argument, the judge said an emergency exists when a governor's running mate resigns and needs to be replaced.
"The people of the state of Alaska expect an election" with at least two gubernatorial and two lieutenant governor candidates, he said.
Irrelevant, he said, is what led up to the emergency, such as why Fleener resigned. The Elections Division does not need to be a "fact-finding agency" trying to determine if politics contributed to the decision. Instead, the agency must maintain the integrity and impartiality that voters trust it with.
Making up an example, Suddock asked: If Fleener had kept his reasons for withdrawal secret, "would the division then have to build a little room with a table and a bare light bulb over it, have folks come in and say, 'Mr. Fleener, I don't know, I think you had something else in mind?'"
Suddock also said he was constrained by a Supreme Court decision that stemmed from the 1990 contest for governor, when Alaskan Independence Party candidates John Lindauer and Jerry Ward suddenly withdrew from the campaign. Former Republican governor Wally Hickel then accepted the AIP's gubernatorial nomination. Next, Hickel selected as his running mate Jack Coghill, who had been the Republican party's choice for lieutenant governor but withdrew from that campaign.
Though that situation involved party candidates, Suddock said a nonparty gubernatorial candidate should have the same rights.
Vince Beltrami, president of the Alaska AFL-CIO, issued a statement saying it's "a good day for Alaska" and that he is looking forward to "a gubernatorial race focused on Alaskans, not bureaucratic red tape."
Lt. Gov. Mead Treadwell also attended the hearing. He said he has proposed that the emergency regulation become a permanent regulation. That proposal is available for public comment,
"I'm very happy with the decision and happy it's being tested in the court because this was not done with our eyes closed. It was done with serious consideration," he said.