Before overturning the results of the House District 40 Democratic primary election, Anchorage Superior Court Judge Andrew Guidi should have checked the flawed formula he used to disqualify a dozen votes.
Guidi subtracted 11 votes from winner Dean Westlake and handed a two-vote victory to incumbent Rep. Ben Nageak based on some simple math offered by former Alaska Republican Chairman Randy Ruedrich about how many votes in Shungnak deserved disqualification.
"The most reliable way to determine that number is to average the number of voters who selected the Republican ballot in Shungnak in the past," Guidi wrote.
Since the 2006 election, the judge said, an average of about 12 voters had picked the Republican primary ballot in the Northwest Alaska village. So he decided to disqualify 12 votes from the August primary.
Since Westlake received more than 90 percent of the Shungnak vote in August, the judge said it would be fair to take 11 votes from Westlake's column and 1 vote from Nageak.
With those "contaminated votes" tossed out, Westlake's win turned into a 2-vote victory for Nageak.
Sorry, but this doesn't add up. This is all guesswork.
Want proof? Take the average number of Democratic ballots in past elections to determine the number of disqualifications. Approach it that way and Westlake wins, not Nageak.
That alone is enough for the Alaska Supreme Court to toss this decision.
As with the Democratic side, the GOP primary vote total in Shungnak has gone up and down over the years, from low single digits to a peak of 18 during the 2010 Murkowski-Miller fight. It all depends upon the intensity of each election.
The only candidates on the Republican ballot this year in that district were incumbent Sen. Lisa Murkowski, Rep. Don Young and congressional challengers who did not pose a threat to either one.
There was far more interest in the Democratic race between Nageak and Westlake, as there was in 2014, when Westlake rolled to a 49-6 advantage in the village.
Calling the Ruedrich formula a reliable way to disqualify votes creates a false impression of precision. It's reliably wrong.
It makes no sense to take a simple average from past elections and claim exactly how a handful of people would have acted in August.
Shungnak is the village in Northwest Alaska where 51 voters were incorrectly given both the Republican ballot and the ballot for the Democrats and other political parties during the August primary. No one was able to vote twice in the Nageak-Westlake race because it was not on the GOP ballot.
Westlake piled up a 47-3 tally in Shungnak, but he won the election in the sprawling district by only 8 votes, with many precincts either heavily in his favor or Nageak's.
Nageak, a Democrat backed by the Republican Party, went to court to overturn the Westlake win, alleging numerous instances of election misconduct. The only one Guidi found convincing was the double balloting in Shungnak.
The contest has become a proxy fight between the two parties because there is no Republican candidate. If Westlake wins, he will side with the Democrats in Juneau, while Nageak would continue to work with the GOP. The outcome will help decide the balance of power in the state House.
One of the troubling questions arising from the judge's decision is his statement that "the average number of Shungnak voters who have selected the Republican ballot since 2006 is 12.75."
There was testimony at the trial by Ruedrich that the number 12.75 was derived from an average of the 2008-2014 primary elections. Had the 2006 primary results been included, the average — and the potential number of disqualified votes — would have been reduced by one.
The attorney for Nageak says the words "since 2006" mean that the 2006 election results were not included and that the language is clear. I read it to mean that the 2006 results were included, which would make the judge's number incorrect.
As part of the court filings, Nageak's attorney submitted a document that included the 2006 vote, along with those from 2008-2014, a sign that the vote a decade ago was regarded as relevant.
But that is a small point.
The main issue is the assumption that the best way to deal with the obvious mistake in Shungnak is to guess about how many voters would have picked the GOP ballot had the election officials done the right thing.
Guess low and Westlake wins. Guess a bit higher and Nageak wins. It's a guessing game either way, one that unfairly disenfranchises voters.
Columnist Dermot Cole can be reached at email@example.com.
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