Opinions

Republican legal strategy on disputed North Slope legislative election was woulda, shoulda, coulda

The Alaska Supreme Court rejected the Shungnak subtraction solution and in doing so changed the political calculus for the state Legislature.

Just how much remains to be seen.

By upholding the primary election in which Kotzeube Democrat Dean Westlake defeated Barrow Democrat Rep. Ben Nageak, the chances improved that the next Legislature will have a coalition more willing to deal directly with the state deficit and taxes.

The Republican Party took an extreme interest in this race because Nageak has proved to be one of its most trusted allies in the state House and there were no Republicans on the ballot.

The primary vote totals across the immense northern Alaska district were almost exactly even, reflecting a clear regional split more than anything else — with Westlake running up big numbers in Kotzebue and Nageak doing the same in Barrow.

The Division of Elections said Westlake finished with an eight-vote margin of victory out of more than 1,600 votes cast.

The election produced an Anchorage court fight for several reasons, starting with the mistake by elections officials in the northwest village of Shungnak. That's where every voter received the ballot that featured Westlake-Nageak as well as the GOP ballot.

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The only contests on the Republican side were those of Sen. Lisa Murkowski and Rep. Don Young. They had no serious opposition.

Enter the court system and the attempt by Nageak and the GOP to guess how many Shungnak voters would have picked the GOP ballot, if given the chance. That would have prevented those people from voting for Westlake or Nageak and reduced the vote for Westlake, who won the village vote 47-3.

Despite Republican predictions that the Shungnak subtraction would withstand a Supreme Court review, it was no surprise that the court tossed the lower court ruling. That's because the Superior Court ruling was based on GOP guesswork that 11 Shungnak votes should have been subtracted from Westlake's total, enough to tip the election to Nageak by two votes.

The flaw in the formula would have been clear to Superior Court Judge Andrew Guidi last week had he closely examined what former GOP chairman Randy Ruedrich offered as a solution.

The formula didn't prove what Ruedrich said it did — that a dozen voters in Shungnak should be disqualified because they would have chosen the GOP ballot and not cast votes in the Westlake-Nageak race had elections officials followed the law.

Ruedrich based his formula on average vote totals in primary elections from 2008-2014 in Shungnak. Since Westlake received more than 90 percent of the Shungnak vote in 2016, the 11 of the 12 disqualified votes came from Westlake, under the Ruedrich plan.

By their questions and comments Wednesday, the Supreme Court justices saw the hole in Ruedrich's reasoning — applying the identical process to an average of the Democratic ballots selected in the 2008-2014 elections would have given the election to Westlake, not Nageak.

Supreme Court Justice Dan Winfree said that using percentages instead of a simple average would have "almost exactly" produced the numbers for a Nageak win. He favored a new election, while the other justices concluded that a second vote was not needed.

The trouble is that "almost exactly" is not close enough when judges have to use guesswork and claim with certainty that one man was a winner by two votes.

Every election is different and it is possible that only five Shungnak voters would have insisted on voting the GOP ballot. Or maybe 15 or maybe none. Your guess is as good as Ruedrich's.

Had Nageak and the GOP identified any voters in Shungnak who declared they would have preferred to not cast a ballot in the Nageak-Westlake race and wanted to vote for Murkowski or Young and no one else, the Nageak case would have been stronger.

The Alaska Supreme Court refused to allow the election to be reduced to guesswork, a reasonable decision.

Columnist Dermot Cole can be reached at dermot@alaskadispatch.com. 

The views expressed here are the writer's and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com or click here to submit via any web browser.

Dermot Cole

Former ADN columnist Dermot Cole is a longtime reporter, editor and author.

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