State Rep. Benjamin Nageak's legal team has been in an Anchorage court for a week attempting to reverse his primary election loss to Dean Westlake, like Nageak a Democrat. In August, Westlake's margin in House District 40 was eight votes out of more than 1,600 cast.
Final arguments were Monday.
The suit has important practical consequences, as it will decide who represents the people of the North Slope and some of Western Alaska. There is no Republican candidate in this race.
The suit also raises important philosophical and historical questions that Judge Andrew Guidi, whose application for a judgeship notes he was an honors history major, cannot have missed.
The first sentence of the state's brief responding to Nageak's suit goes to the heart of the case: "Some human error is to be expected in an election, particularly given Alaska's vast size and the large number of people needed to conduct one."
The law anticipates errors. But what kind of errors — with what consequences — and what if the errors are corrected? Corrected errors are no longer errors.
An error, a reasonable person assumes, is not intentional. An election worker in a village who phones in the election results to the regional center and transposes 96 into 69 has probably made an error. Of course, we can't look into the worker's heart so we can't be sure. We must infer based on experience. Or, more specifically, the election judges must infer. Meanwhile, an election worker who knowingly alters the vote count to advantage a candidate is involved in fraud.
If you read any biography of legendary Chicago Mayor Richard Daley, you will come to a chapter about how the mayor retained power. One of his devices was fraud that produced errors in the election-day count. Hand-picked election workers voted repeatedly before the polls opened. Dead men were registered as voters and voted the Democratic ticket. One election season, a corrupt election official with a literary bent — and a sense of humor — had Ernest Hemingway, Scott Fitzgerald and James Joyce all voting Daley and all living in the same location, which proved to be a vacant lot.
A voter with a mischievous streak can have a serious impact on a close election. Years ago, a Fairbanks municipal election produced two candidates with the same number of votes — and a write-in vote for Fidel Castro.
Nageak's lead attorney, Tim McKeever, long experienced in election law and political contests, repeatedly pointed out discrepancies between what election workers in District 40 were expected to do by law, by election code, by training, and what they actually did. In closing, he characterized the election workers' behavior as "reckless."
Election workers were expected to sign the registration book, the books voters sign after entering the polls, before returning them to the regional election center. The workers also were expected to sign books that contained the names of people who cast questioned ballots. McKeever was right; many of these books that should have been signed by an election worker were not. Why?
"There are some things we can't explain but can kinda deduce," State Election Review Board member Sallie Regan of Juneau told McKeever in her testimony.
Why were these books unsigned? Probably because the election workers were in a hurry or didn't clearly understand a signature was required. What were the consequences of no signature for the outcome of the election? Probably none.
Randy Ruedrich, a long-time Republican Party official, testified on behalf of Nageak, who caucuses with the Republicans. Ruedrich, presented as an expert witness, said that if all the poll workers in the state behaved as the workers did in District 40, Alaska would face "anarchy." Judges are rarely impressed by expert witnesses who flourish dark hypotheticals, even a witness with Ruedrich's school-master certainty and flashes of impish charm. What might happen is not evidence.
The term "primary election" is a misnomer and has been misunderstood since states began replacing nominating conventions with primaries more than a hundred years ago. Nobody is elected in a primary election; candidates are nominated for a place in the general election, where some win office, others go home losers. The primary elections are conducted by the state but they are in effect the property of the parties, which can determine who among those qualified to vote in the state — residents of a certain age, registered, enjoying full rights of citizenship — can vote in their primary.
The Republican Party's rules are in some measure responsible for the difficulties in District 40. The Republicans insisted on a closed primary in which only Republicans and those with no party affiliation could participate in their primary. Alaskan Independence Party members, members of the Democratic Party and the Libertarian Party were banned from receiving the GOP ballot and the ban was enforced by two separate ballots — a GOP ballot and an all-the-rest ballot. Some voters got the wrong ballot. Whether this was the voter's fault or the election officials' fault is less material than the responsibility of the election officials — they're running the election — to ensure only legally cast ballots are counted.
Ruedrich testified that Republicans wanted a closed primary to prevent Democrats from joining their primary and participating in picking their candidates. Apparently he thinks it is fine for Republicans to choose the Democratic ballot, as the law allows, and muck around in the Democrats' nominating process. In the Nageak-Westlake contest, two of the plaintiffs who joined Nageak in his suit, Luke and Laura Welles, were Republicans who chose the combined ballot, which they were eligible to do, but were, as the state said in its brief, "mistakenly asked to do so via the questioned ballot process." Their ballots were counted. Perhaps they suffered momentary confusion or embarrassment but they were not prevented from voting.
In the village of Shungnak, an error called "undisputed" by the state produced 50 people who voted in person and one special-needs voter who received both ballots and voted them. This did not mean that voters could vote for Nageak or Westlake twice, as they were not on the GOP ballot, only the combined ballot. It is surprising the voters didn't know they could not vote twice. Maybe they were too compliant when they received instructions from election workers.
The outcome of this trial (and appeals) could have an impact not only on the voters in District 40 and the candidates for the House but on the rest of Alaska. Major legislation has passed the Legislature by only one vote — budgets certainly and policy bills as well. The right of women to sit on juries was widely debated in early Alaska. A bill to allow them to become jurors passed the Senate by one vote in the '20s.
Judge Guidi alternately faces past and future in deciding this case. The past provides the history of election contests in court and how they were resolved. The future is blank for the moment. When the judge finishes his decision, the future will include the precedent he sets.
Michael Carey is an Alaska Dispatch News columnist. He can be reached at firstname.lastname@example.org.
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