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Special Anchorage election investigator must have broad mandate

  • Author: Matt Claman
  • Updated: July 7, 2016
  • Published April 21, 2012

Our municipal officials ran out of ballots throughout the city, and we are united in disbelief and outrage that some of our fellow citizens were denied their constitutional right to vote. Voting is one of our most cherished American rights, and we try to make it easier for more people to exercise that right. In this election, only 56 percent of precincts had enough ballots. As we learn more about the ballot shortage, people keep asking many of the same questions. Should there be another election? What will we learn from an independent investigation? How can we make sure ballot shortages never happen again?

Should there be another election?

The Alaska Supreme Court provided guidance on when the courts can order another election. In Hammond v. Hickel (1978), the court explained that judges can only order a new election if "malconduct" by election officials "was sufficient to change the result of the election." And the court provided the rule to apply when citizens lose their right to vote: "If a specified number of votes should have been counted but are no longer available for counting, they should be added to the vote totals of each candidate in proportion to the votes received by the candidate in the precinct or district in which the votes would otherwise be counted." Figure out how many people lost their right to vote in a particular precinct, and then add those votes based on the proportions shown by already-counted votes in the precinct.

The Hammond v. Hickel case, which arose from the 1978 primary elections in which both the Democratic and Republican nominations for governor were closely contested, has provided a logical rule for future courts to follow. The proportional-by-precinct rule is transparent and easy for courts to apply and for the public to understand. Given the cost and uncertainty that might arise from court-ordered new elections, it also serves the public interest in finality of election results except when the margin of victory is very small.

While the actual number of people who lost their right to vote is unknown, applying the Alaska Supreme Court's rule makes it difficult to imagine facts that might change the result of the election. To illustrate, even if 20,000 people lost the right to vote -- a number that far exceeds any published estimates -- over 75 percent would need to support Proposition 5, for example, to change that result. But few, if any, precincts have reported 75 percent in favor of the proposition.

Applying the Supreme Court's rule, unless there is substantial new evidence of disenfranchised votes, there should not be another election because multiple errors by the Clerk's Office do not appear to be enough "to change the result of the election."

What will we learn from an independent investigation?

Providing enough ballots to only 56 percent of the precincts while thousands of ballots sat in storage is a failure. This failing mark raises many questions that we must ask.

How many ballots did the Clerk's Office send to each precinct? And how did the Clerk's Office calculate those numbers? If the Clerk's Office ordered ballots for 70 percent of registered Anchorage voters, as required by law, what happened to the extra ballots?

Did the election workers have a checklist of steps to follow in the event the precinct ran out of ballots? Why did election workers send voters to another precinct rather than have those voters cast handwritten ballots? What mistakes have occurred in past Municipal elections and what steps did the Clerk or Assembly take in the past to prevent those mistakes in the future?

How did the Clerk supervise the employees in the Clerk's Office who managed the election? How did the Assembly supervise the Clerk? Given the need for direct accountability to the public, why did the Clerk's Office hire an outside company to provide the election workers for this crucial function of democracy?

Is there any history in Alaska, or anywhere else in the United States, where citizens were able to exercise their right to vote in only 56 percent of the precincts?

To all of these questions -- and countless more -- there are no good answers. Like a camping trip for which someone only packs five days of food on a 10-day trip, all of the answers point to failure. Each answer will show failure to plan, failure to organize, and failure to perform. The answers will provide excuses, but there is no good excuse for denying a single citizen their right to vote. Even though the answers will be uncomfortable for some, the public has a right to know who is responsible for this failure.

Ensuring ballot shortages never happen again

Among the worst tragedies in this Municipal election is the unknown number of citizens who lost their right to vote. In Anchorage, and throughout the U.S., we are united in our common belief in every citizen's right to vote. No one in Anchorage should have lost that right on April 3. Failures like this ballot shortage cause the public to lose trust in our public institutions. How does the Municipality rebuild voter trust in its ability to manage our elections?

Hiring an independent investigator is the first step. New Assembly Chair Ernie Hall showed good judgment in announcing plans to hire an independent investigator to review the election. Making sure the investigator has a broad mandate and adequate resources to fully investigate this failure is the second step. Limiting the investigator's authority or attempting to provide legislative direction would compromise the independence needed to restore public confidence.

Asking the investigator to provide recommendations on how to prevent such a failure in the future is a third step. Professionals use checklists to follow standardized procedures and to minimize error. Surely, similar checklists can help the Clerk's Office and the election workers who have direct contact with voters. I understand that the manual for election workers, which explains how to respond to a tsunami, does not provide guidance if they run out of ballots. Understanding what safeguards -- if any -- were in place to prevent ballot shortages is important to determining the safeguards that we must have in the future. "Fail-safe" strategies are designed to prevent harm even in the event of failure. Our election process should have fail-safe procedures in place so that even in the event of a ballot shortage in a single precinct, every citizen will be able to exercise their right to vote.

And making sure we follow the independent investigator's recommendations is the fourth and final step.

To regain voter trust, the Municipality must openly identify all of the mistakes that occurred in the 2012 election. Those who caused the failure must take full responsibility for that failure. And the Clerk's Office and elections officials must learn from these mistakes so that the same and similar mistakes do not happen again. Our public officials must be accountable for this failure and learn from these mistakes.

Matt Claman is an attorney with Lane Powell, is a former Anchorage Assembly member, and served as mayor of Anchorage in 2009. Alaska Dispatch encourages a broad spectrum of opinions and perspectives and does not necessarily condone those of commentary authors. To submit a commentary for consideration, please email commentary(at)alaskadispatch.com

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